signee is not bound to pay the freight;1 not even if the goods are put into a public store, under a general order to discharge the ship, before the bill of lading is indorsed.2 If an intermediate consignee is in any event liable for freight, he can deduct from the freight due the amount of any damage previously done to the goods.3 Under the Bills of Lading Act of 18 & 19 Vict. c. 111, the rights and liabilities of the consignee or indorsee pass from him by indorsement over to a third person. But the assignee has been held liable in a case where the bill of lading had not the word "assigns" in it.5 The mere receipt of the goods by one actually the owner of them, might lay him under an obligation to pay for bringing them; but not the receipt by one who is not owner, unless he receives them under an authority conditioned to pay the freight. 4 And one who is only an agent of the consignee and is known to the master to be no more, does not become personally liable by receiving the goods, and entering them at the custom-house in his own name. But if goods are consigned to A, care of B, or to B, for A," he or they paying freight," etc., B is not personally liable for freight on receiving them. And if one who is actually indorsee of the bill of lading, obtain the goods, not under the bill of lading, but by some other means, as by an order of the consignee, the consignee himself may be liable, but his indorsee would not be liable for freight; unless a custom on his part to take goods in this way and pay freight for them, suffices to raise 1 Cock v. Taylor, 13 East, 399; Tobin v. Crawford, 5 M. & W. 235, s. c. affirmed in the Exchequer Chamber, 9 M. & W. 716; Dougal v. Kemble, 3 Bing. 383; Trask v. Duvall, 4 Wash. C. C. 181; Merian v. Funck, 4 Denio, 110, s. c. affirmed on appeal, 1 How. Ct. App. 656. 2 Merian v. Funck, 4 Denio, 110, 1 How. Ct. App. 656; New York Nav. Co. v. Young, 3 E. D. Smith, 187. 3 Davis v. Pattison, 24 N. Y. 317. Smurthwaite v. Wilkins, 11 C. B. N. s. 842; Lewis v. M'Kee, Law Rep. 2 Ex. 37. • Renteria v. Ruding, Moody & M. 511. Ward v. Felton, 1 East, 507. 7 Amos v. Temperley, 8 M. & W. 798. Miner v. Norwich R. 32 Conn. 91. field v. Northern R. 18 Barb. 586. 172. See also Grove v. Brien, 8 How. 429; But a contrary decision was given in Can- the implied assumpsit. But if he obtain the goods under the bill of lading, so as to be liable for the freight, he will continue liable although he has delivered over the goods or their proceeds wholly to the consignee before a demand for freight was made upon him.2 These remarks upon the effect of the bill of lading and an indorsement of it, and receipt of the goods under it, seem to be true and applicable only where there is no charter-party. It would seem, however, to be an obvious and certain conclusion from established principles, that if a master delivers goods to any party, with notice to him that he should look to him personally for freight, and the party accepts the goods and receives them with this notice, he becomes thereby liable. The only ground of exception would be, that this party had, by his bargain, an absolute right to receive the goods, without any payment of freight, and the master, consequently, had no right whatever to withhold them for want of payment. When the consignor is owner of the goods he is liable for the freight. And he is now held liable as the contracting party, although he does not own the goods and the carrier has waived his lien on the goods by delivering them.5 If the carrier is in fault in not collecting the freight he cannot afterwards call upon the consignor for it. But if he may deliver the goods without demanding. freight, it is difficult to see how he can be guilty of any fault towards the consignor, for it seems to be well settled that, when 1 Wilson v. Kymer, 1 M. & S. 157. And in Coleman v. Lambert, 5 M. & W. 502, it was held, that, although generally a consignee is not liable for freight when there is no bill of lading, yet if the plaintiff can show prior dealings with him, and that he paid freight on those occasions, this will be evidence that he contracted to pay freight, and he will be held liable. * Bell v. Kymer, 5 Taunt. 477, 3 Camp. 545. See Moorsom v. Kymer, 2 M. & S. 303. Holt v. Westcott, 43 Maine, 445. 'Wooster v. Tarr, 8 Allen, 270. See Jobbitt v. Goundry, 29 Barb. 509; Fox v. Nott, 6 H. & N. 630. Thomas v. Snyder, 39 Penn. State, 317. Coal was shipped to A or his assigns, "he or they paying freight " unto B, the owner of the boat. On delivery of the coal neither B nor any agent of his was present to receive the freight, and by the subsequent failure of the assignees it was lost. Held that the consignor was not liable for the freight. there is a charter-party, this is evidence of an express contract on the part of the shipper to pay freight; and the clause in the bill of lading respecting the payment of freight by the consignee is inserted for the benefit of the master, and not of the consignor. And where there is no charter-party, but only a bill of lading, it seems that this amounts to, and imports, an implied contract on the part of the shipper to the same effect.1 Sometimes the freight money is paid in advance, in whole or in part, or other advances are made to the owner of the ship. Then, if the goods are not delivered, or the voyage not performed, under circumstances which would give the ship-owner no right to claim freight if it had not been paid, the question arises whether he is bound to pay it back. But this question, although not unfrequently attended with some difficulty, is a question of fact rather than of law; and the difficulty is not so much one of knowing what the true principles are, as in what manner they shall be applied. It is now quite certain, that if the payment be merely a payment of freight in advance, it must be repaid if freight is not earned.2 1 Roberts v. Holt, 2 Show. 443; Penrose v. Wilks, Abbott on Shipping, 415; Tapley v. Martens, 8 T. R. 451; Marsh v. Pedder, 4 Camp. 257; Christy v. Row, 1 Taunt. 300; Shepard v. De Bernales, 13 East, 565. In Drew v. Bird, Moody & M. 156, Lord Tenterden said that where there was no charter-party, and the goods were by the bill of lading to be delivered to a party other than the shipper, or to the assigns of such other party, he or they paying freight, the shipper was not liable, if the goods were delivered without payment of freight, unless there were some additional circumstances to show a contract between him and the ship-owner. This case was declared not to be law, by Parke, B., in Sanders v. Vanzeller, 4 Q. B. 260, 288. The true rule, which has been universally followed, is laid down in Domett v. Beckford, 4 B. & Ad. 521, where it was held, that the only difference between a case where there was a charter-party, and one where there was not, consisted in this alone, that, in the former case, by the charter-party there was an express contract on the part of the shipper, and in the latter, an implied one. See also Blanchard v. Page, 8 Gray, 281; Barker v. Havens, 17 Johns. 234; Spencer v. White, 1 Ired. 236; Grant v. Wood, 1 Zab. 292; Hayward v. Middleton, 3 McCord, 121. The same rule applies to a case of demurrage. Harrison v. Spaeth, 23 Law T. 155, 28 Eng. L. & Eq. 132. In Collins . Union Transp. Co. 10 Watts, 384, it is said that the condition was introduced for the benefit of the consignor. The word not was omitted before introduced by a mistake of the printer. See Layng v. Stewart, 1 Watts & S. 222. 2 In an anonymous case, 2 Show. 283, Saunders, C. J., is reported to have said: "Advance-money paid before, if in part of freight, and named so in the charter-party, although the ship be lost before it come to a delivering port, yet And if the sums paid to the master or ship-owner are but loaned to the ship-owner, then they must be accounted for as loans; that is repaid, with deduction of freight that may become due, and no deduction, if no freight becomes due.1 But it is quite as certain that the parties may make a different agreement. The shipper may say, if you will take my goods, I will pay you now so much. money, and you may keep it whether you carry the goods to their destined port or not. wages are due according to the proportion of the freight paid before, for the freighters cannot have their money." This doctrine is, however, neither sanctioned by the early maritime writers, nor by modern adjudications. See Cleirac, Us et Coustumes de la Mer, p. 42; Ord. de la Marine, du Fret, art. 18; Valin, Com. sur Ord. p. 661; Pothier, Charte-Partie, n. 63; Roccus, n. 80. Some writers are of the opinion that if there is no fault in the master a pro ratâ freight will be due. Straccha, De Nav. 3, n. 24; Loccenius, De Jure Maritimo, lib. 3, ch. 6, § 11; Roccus, n. 81. In Pitman v. Hooper, 3 Sumner, 50, 66, Mr. Justice Story said: "In the ordinary cases of freight paid in advance, I do not understand, that if the voyage is not performed the owner can, without an express stipulation to the purpose, retain it, but the shipper is entitled to recover it back." See also Mansfield v. Maitland, 4 B. & Ald. 582; Watson v. Duykinck, 3 Johns. 335; Griggs v. Austin, 2 Pick. 20; Leman v. Gordon, 8 Car. & P. 392, per Lord Abinger, C. B.; Brown v. Harris, 2 Gray, 359; Minturn v. Warren Ins. Co. 2 Allen, 86; Benner v. Equitable Ins. Co. 6 Allen, 222; Phelps v. Williamson, 5 Sandf. 578; Cope v. Dodd, 13 Penn. State, 33; The Zenobia, Abbott, Adm. 80; Giles v. The Brig Cynthia, 1 Pet. Adm. 203, 206; Howland v. The Brig Lavinia, id. 123, 126; Mulloy v. Backer, 5 East, 316; Gillan v. Simpkin, 4 Camp. 241; The Ship Panama, Olcott, Adm. 343, 361. In Mashiter v. Buller, 1 Camp. 84, the voyage was from London to Lisbon. By the bills of lading freight was payable in London. Lord Ellenborough held that there was a substitution merely of London as the place of payment in the place of Lisbon, but that the performance of the voyage was not dispensed with, and that if freight had been paid on shipment, as the voyage had never been completed, it might have been recovered back. In the case of The Pacific, 1 Blatchf. C. C. 569, the owner of the ship contracted to take the libellant as a cabin passenger from New York to California. Not more than fifty other passengers were to be taken, in order that there might be room for ventilation and exercise. After the passage-money was paid the libellant went on board, and found that seventy-two cabin passengers were engaged, and that the vessel was thereby overcrowded, and dangerous to health. He therefore refused to go. Held, that he might recover back his passage money, and also damages for the breach of the contract. But if the passenger or shipper cause the non-performance of the contract, the passage-money or freight cannot be recovered back. Detouches v. Peck, 9 Johns. 210; Giles v. The Brig Cynthia, 1 Pet. Adm. 207, note; Griggs v. Austin, 3 Pick. 20. 'Manfield v. Maitland, 4 B. & Ald. 582, 586, per Bayley, J. This would, strictly speaking, not be an agreement for freight; but it would be an agreement the parties had a right to make. And it might be proved by, or inferred from, circumstances. As if the ship-owner said, I will take your goods to Havre, and will charge twenty dollars a ton payable there, or fifteen dollars if you will pay it here, it might be competent for a jury to infer that the reason for asking so much less at home, was that the payment was not to be at any risk, but was to remain the ship-owner's at all events, and that the shipper paid the money with that understanding. But, if the bargain is money for the carriage of goods, 1 In Andrew v. Moorhouse, 5 Taunt. 435, the bill of lading stated that the freight was paid. The voyage was from London to the Cape. The broker who made the contract with the shipper, told him that the rate of freight was £5 paid in London, or £7 at the Cape, per ton. The court left it for the jury to say what was the intention of the parties, and they having found that the payment was not conditional on arrival, the court refused to set aside the verdict. The agreement in Watson v. Duykinck, 3 Johns. 335, was that the master should suffer the plaintiff to proceed in his vessel as a passenger, and to load on board for transportation goods to the value of six hundred dollars. Kent, C. J., held that this meant that the plaintiff should be received on board as a passenger, that he should load the goods on board, and that the master should make all due and bonâ fide efforts to transport them. But that he did not contract to deliver them; and that, therefore, the voyage being broken up, he was entitled to retain the freight. In De Silvale v. Kendall, 4 M. & S. 37, the charter-party stipulated that £120 should be paid to the defendant as freight for the outward cargo to Maranham, and as much cash as might be necessary for the ship's disbursements, to be advanced by the plaintiffs when required, free from interest or commission, and the residue of the freight should be paid on delivery of the goods at Liverpool. Lord Ellenborough held that the advancing of the freight free from interest, showed that it was not intended as a loan, and that the word "residue " imported that a part of the freight was to be advanced, and the remainder only was to abide the usual course of events. See also Saunders v. Drew, 3 B. & Ad. 445; Blakey v. Dixon, 2 B. & P. 321; The John, 3 W. Rob. 170, 177. In Hicks v. Shield, 7 Ellis & B. 633, the charter-party contained this clause, “cash for ship's disbursements to be advanced to the extent of £300 free of interest but subject to insurance." Held that this was an advance of freight and not a loan, and that it could not be recovered back on the loss of the vessel. Lord Campbell, C. J.: "If it is to be insured it must be for freight in advance, for a mere loan could not be insured; and if it is not a mere loan, but advance of freight, the plaintiff cannot recover it back." A similar construction was given to the following clause in Jackson v. Isaacs, 3 H. & N. 405, "freight payable by charterer's acceptance, on ship clearing the custom-house, subject to insurance." See also Trayes v. Worms, C. P. 1865, 12 Law Times, N. s. 547. In Gillan v. Simpkin, 4 Camp. 241, it was held, that, a custom being proved that in West India voyages the passage-money was |