In respect to stipulations, it has been said that they must be made in words sufficiently intelligible to indicate an agreement that the operation of the law merchant, in respect to those instruments, is not to prevail, and they must be in writing, signed by the parties, before they can be received as an auxiliary to explain how the contract is to be performed.1

net proceeds of the goods shipped, after deducting commissions and freight, should be paid to the shipper ninety days after the arrival of the vessel at her port of discharge in the United States. On the return voyage the ship, bound to New York, was stranded in Long Island Sound, and the cargo damaged and abandoned to the underwriters, but the ship was afterwards got off and repaired. The adventure of the plaintiffs was insured for the round voyage. No effects were shipped on board the vessel on her return voyage on account of the plaintiffs, but the defendant had invested the proceeds of the outward adventure in the cargo on his own account. The court held that the contract was in effect a loan on the personal responsibility of the defendant and his principals, to be repaid if the ship arrived at her port of discharge, and that, as she might, after being repaired, have gone there, the defendant was liable. See also Winchester v. Patterson, 17 Mass. 62.

In Steamboat John Owen v. Johnson, 2 Ohio State, 142, where there was a stipulation in the bill of lading to deliver the goods to the consignee on payment of a certain sum to the clerk of the boat for the consignor, and the goods were delivered without payment, it was held that the boat was liable.

In Jones v. Hoyt, 23 Conn. 157, the bill of lading contained a stipulation that the lumber on board should be measured on the deck of the vessel on arrival at the port of destination, by the consignee and master, and freight should be paid according to such measurement. On arrival, the consignee having died, no person appeared to assist the captain in measuring the lumber, and it was accordingly put on the wharf and measured. Held that the measuring on deck was not a condition precedent, and that the owner of the vessel, having substantially complied with the stipulations in the bill of lading, was entitled to freight.

1 Brittan v. Barnaby, 21 How. 527. In this case a stamp in red ink was put on the back of the bill of lading by the ship-owner, which provided that freight was to be paid before delivery, if required. The time when it was put on was not certain, but it was assumed to be the time of making the bill. There was no evidence of any assent to its provisions on the part of the shipper, or of how it was regarded by the ship-owner, until it was set up in the answer; and the court held that it was not admissible to control the provisions of the bill of lading. See also Lewis v. Great Western R. 5 H. & N. 867; Western Transp. Co. v. Newhall, 24 Ill. 466; The Brig May Queen, 1 Newb. Adm. 464.

SECTION IV.

OF THE LIABILITY FOR FREIGHT.

It is often said that the contract for freight is an entire contract. It is so in many respects; but the rule is not without some exceptions and modifications. This rule of entirety operates, first, on the quantity of the goods, no freight being payable unless all are delivered; 2 next, upon the completion of the voyage, the general rule being that no freight is payable unless the whole voyage is performed.3

1 The Nathaniel Hooper, 3 Sumner, 542; Post v. Robertson, 1 Johns. 24, per Thompson, J.; Halwerson v. Cole, 1 Speers, 321; Adams v. Haught, 14 Texas,

243.

2 See post, p. 205, n. 3.

* In The Nathaniel Hooper, 3 Sumner, 542, 554, Mr. Justice Story said: "The general principle of the maritime law certainly is that the contract for the conveyance of merchandise on a voyage is, in its nature, an entire contract, and unless it be completely performed by the delivery of the goods at the place of destination, no freight whatsoever is due; for a partial conveyance is not within the terms or the intent of the contract, and unless it be completely performed by the delivery of the goods at the place of destination, no freight whatsoever is due, and the merchant may well say non in hæc fœdera veni." Lord Ellenborough also, in Hunter v. Prinsep, 10 East, 378, 394, states the rule with great accuracy. He says: "The ship-owners undertake that they will carry the goods to the place of destination unless prevented by the dangers of the seas, or other unavoidable casualties; and the freighter undertakes that if the goods be delivered at the place of their destination, he will pay the stipulated freight; but it was only in that event, namely, of their delivery at the place of destination, that he, the freighter, engages to pay anything. If the ship be disabled from completing her voyage, the ship-owner may still entitle himself to the whole freight, by forwarding the goods by some other means to the place of destination; but he has no right to any freight if they be not so forwarded; unless the forwarding them be dispensed with, or unless there be some new bargain upon this subject. If the ship-owner will not forward them, the freighter is entitled to them without paying anything. One party, therefore, if he forward them, or be prevented, or discharged from so doing, is entitled to his whole freight; and the other, if there be a refusal to forward them, is entitled to have them without paying any freight at all."

"The safety

In Mackrell v. Simond, 2 Chitty, 666, 673, Lord Mansfield says: of the ship is the mother of freight." And Mr. Justice Maule, in Crozier v. Smith, 1 Man. & G. 407, 415, says: "Freight is generally payable only on the arrival of the vessel, when the merchant receives the goods on which it is charged." See also Osgood v. Groning, 2 Camp. 466; Barker v. Cheriot, 2

If freight is payable by the ton, or bale, or package, or barrel, severally, or where different parts of the cargo are shipped upon distinct and separate terms as to freight, the consignee must pay for what is delivered.1 If an entire freight is payable for an entire cargo, and a part is delivered and accepted, the freight of that part must be paid.2 But the consignee may refuse to receive the part offered to him, and then the consignor is not bound to pay a pro rata freight. Where what is shipped increases on the voyage, it has been held that freight is due only for what is shipped.

3

A lit

Johns. 352; Armroyd v. Union Ins. Co. 3 Binn. 437; Union Ins. Co. v. Lennox, 1 Johns. Cas. 377, 383; Sampayo v. Salter, 1 Mason, 43; Caze v. Baltimore Ins. Co. 7 Cranch, 358; Vlierboom v. Chapman, 13 M. & W. 230; Tirrell v. Gage, 4 Allen, 245.

1 Christy v. Row, 1 Taunt. 300; Ritchie v. Atkinson, 10 East, 295. See also M'Gaw v. Ocean Ins. Co. 23 Pick. 405, 414; Frith v. Barker, 2 Johns. 327; Wooster v. Tarr, 8 Allen, 270.

2 Hinsdell v. Weed, 5 Denio, 172.

Sayward v. Stevens, 3 Gray, 97. In this case the owners of the vessel agreed to transport for a gross sum, a number of miscellaneous goods, which bore no proportion to each other in size or in cost of transportation. Part were lost on the voyage, and the consignee refused to accept the residue. The court held that the contract being entire, the consignor was not liable to pay either an entire or a pro ratâ freight. The goods which arrived were sold by the captain, as no one appeared to claim them. The owner of the goods then brought an action for money had and received, to recover the proceeds of the sale. The defendants claimed to deduct the freight due for the goods, on the ground that the action for money had and received was an affirmance of the contract. But the court held that freight should not be deducted. But, as when the goods were sold there was supposed to be more than there actually was, and the agent of the owner of the ship repaid to the purchaser the sum of seventy-five dollars, the court held that this should be deducted, and also all necessary charges for care and storage of the goods and the expenses of the sale. Stevens v. Sayward, 3 Gray, 108, 8 Gray, 215.

In a recent case in the Court of Exchequer in England, 2,664 quarters of corn were shipped on board a vessel to be carried from Odessa to Gloucester. The bills of lading were in the usual form, with the clause "quantity and quality unknown," freight payable at a certain rate per quarter. On the arrival of the vessel, a portion of the corn having become heated and damaged, the bulk was found to have increased to 2,785 quarters. The court held that freight was payable for the quantity shipped, and not for that delivered. Gibson v. Sturge, 10 Exch. 622, 29 Eng. L. & Eq. 460. In Buckle v. Knoop, Law Rep. 2 Ex. 125, freight by the charter was a certain rate "per ton of fifty cubic feet delivered." Pressed cotton expanded on being taken from the hold. Held that freight was due only on the amount shipped. Affirmed in the Exchequer Chamber, Law

eral and precise application of the provisions of the bill of lading would deprive the ship-owner of all freight, if the goods were not delivered in as good condition as received. But if the ship-owner delivers a part of the goods and pays for the rest, he is entitled to his freight on the whole, provided the consignee receives the part delivered.1 If the goods are accepted and freight is demanded, the shipper may have his claim against the ship-owner, by way of offset or otherwise, for the value of the goods not delivered.2 And

Rep. 2 Ex. 333. If freight is payable per "net weight delivered," freight is due only on the amount delivered. Coulthurst v. Sweet, Law Rep. 1 C. P.

649.

1 Hammond v. McClures, 1 Bay, 101.

* In England, the rule is well settled that the shipper cannot, in an action brought against him for freight, set up, in defence, that the goods were damaged by the negligence of the carrier, but is obliged to resort to a cross action. Bellamy v. Russell, 2 Show. 167; Bornmann v. Tooke, 1 Camp. 377; Shields v. Davis, 6 Taunt. 65, 4 Camp. 119. In Gibson v. Sturge, 10 Exch. 622, 29 Eng. L. & Eq. 460, 466, the court said: "It is clear, according to the general law on the subject, that the circumstances of the wheat being damaged does not at all affect the right of the plaintiffs to freight." The reason that the shipper is obliged to resort to a cross action, is owing to the English statutes of set-off (2 Geo. II. c. 22, § 15, and 8 Geo. II. c. 24, § 4), which do not allow a claim of this nature to be offsetted. In this country, however, the statutes of set-off in the various States are generally of a more liberal nature, and the shipper has therefore been allowed to set up in defence, in the nature of a set-off, the damage done to the goods by the carrier. And Lord Campbell, C. J., in Thompson v. Gillespy, 5 Ellis & B. 209, 32 Eng. L. & Eq. 153, says it is a reproach to the legislature that parties have not the means of settling cross claims, except by distinct actions. In those States where the question has not yet arisen, it must be decided, when it is presented, by the provisions of the statutes of set-off of the respective States. An examination of these statutes is, however, foreign to the purposes of this work. We shall therefore merely cite the cases where the question has arisen and been decided. Schureman v. Withers, Anthon, 166; Ogden v. Coddington, 2 E. D. Smith, 317; Hinsdell v. Weed, 5 Denio, 172; Bartram v. M'Kee, 1 Watts, 39; Leech v. Baldwin, 5 Watts, 446; Humphreys v. Reed, 6 Whart. 435; Ewart v. Kerr, 1 Rice, 203; Ewart v. Kerr, 2 M⭑Mullan, 141; Edwards v. Todd, 1 Scam. 462; Ship Rappahannock v. Woodruff, 11 La. Ann. 698; Glover v. Dufour, 6 La. Ann. 490; Waring v. Morse, 7 Ala. 343; Boggs v. Russell, 13 B. Mon. 239. The English rule is followed in Georgia. Brown v. Clayton, 12 Ga. 576. In Snow v. Carruth, 1 Sprague, 324, it was held by Sprague, J., that damage done to the goods could be set up as a defence to an action brought against a consignee for freight, in admiralty. See also Bradstreet v. Heron, Abbott, Adm. 209; Thatcher v. McCulloh, Olcott, Adm. 365. And in a subsequent case, in an action for freight, it being proved that the damage done

if the carrier pays to the shipper the full value of the goods, he may deduct from it the freight which would have been payable to him, as otherwise the shipper would be more than indemnified.1

As the usual bill of lading expresses that the goods are to be delivered to A B, "he paying freight thereon," the receiving of the goods under that bill, whether by the original consignee, or any assignee or indorsee of the bill, is evidence of an obligation to pay the freight.2 And if a consignee assigns and indorses over the bill of lading, and the indorsee takes the goods, the original con

to the goods by the fault of the carrier exceeded the freight, the libel was dismissed. Bearse v. Ropes, 1 Sprague, 331. See also Zerega v. Poppe, Abbott, Adm. 397; Kennedy v. Dodge, U. S. D. C. New York, 1867, Shipman, J.

1 Roccus, n. 81, cited by Lord Mansfield, in Luke v. Lyde, 2 Burr. 882, 889; Knox v. The Ninetta, Crabbe, 534, 544; Arthur v. Sch. Cassius, 2 Story, C. C. 81. It was held in the case of The Ship Panama, Olcott, Adm. 343, 363, that where freight was paid in advance, and the goods were not delivered, the owner had a lien on the ship for the freight and the value of the goods. But this is certainly inconsistent with the cases above cited, and with the subsequent case, decided by the same learned judge, of Thatcher v. McCulloh, Olcott, Adm. 365. See also The Joshua Barker, Abbott, Adm. 215; Bazin v. Richardson, U. S. C. C. Penn. 1857, 20 Law Rep. 129, 5 Am. Law Reg. 459.

From the earlier cases it would be inferred that the fact of an acceptance of the goods by the consignee, or his indorsee, under a bill of lading, containing the clause in question, raised a legal presumption that the consignee or his indorsee had made a contract to pay the freight. Dougal v. Kemble, 3 Bing. 383; Cock v. Taylor, 13 East, 399; Scaife v. Tobin, 3 B. & Ad. 523; Jesson v. Solly, 4 Taunt. 52. In Merian v. Funck, 4 Denio, 110, the court said: "It is well settled that when the goods, by the terms of the bill of lading, are to be delivered to the consignee, or to his order, on payment of freight, the party receiving them, whether a consignee or an indorsee, to whom the bill of lading has been transferred by the consignee, makes himself responsible for the payment of freight." See also Smith v. Flowers, 6 Mart. La. 12; Shaw v. Thompson, Olcott, Adm. 144. In Sanders v. Vanzeller, 4 Q. B. 260, it was held, that the reception of the goods by a consignee, or an indorsee, under the indorsement, would be evidence for the jury, from which they would be warranted in finding that the consignee or indorsee thereby contracted to pay freight, but that no contract would arise by implication of law. See also Zwilchenbart v. Henderson, 9 Exch. 722, 25 Eng. L. & Eq. 560; Möller v. Young, 5 Ellis & B. 755, 34 Eng. L. & Eq. 92, reversing the same case in the Queen's Bench, 5 Ellis & B. 7, 30 Eng. L. & Eq. 345; Kemp v. Clark, 12 Q. B. 647; The Sch. Treasurer, 1 Sprague, 473; Swett v. Black, 2 Sprague, 49; Allen v. Bareda, 7 Bosw. 204; Wooster v. Tarr, 8 Allen,