lighterage in addition to freight, when the water is so low that the boat cannot proceed.1

If the master can transship and will not, then the shipper is entitled to his goods without making any payment of freight; for the master or ship-owner has no interest in, or lien on the goods whatever, except he has earned his freight, or is about to earn it. And if neither of these things is true, the shipper is entitled to his goods without any burden or charge upon them.2

Sometimes the ship-owner reserves the right to reship the goods, or send them to their destined port in another vessel; the bills of lading containing a provision, that the ship-owner" may send them forward in any other good vessel," or some equivalent phrase. In such case it seems that the ship-owner must still carry them himself if he can, and is under a responsibility for their safe delivery.3 defendants, the owners of another vessel, to take the guano on at a stipulated rate of freight. The charter-party stated the number of tons to be 470. The guano was put on board the latter ship, but it appeared that the quantity was much less than 470 tons. The plaintiffs had agents at Valparaiso, but they were not consulted. The plaintiffs, on the arrival of the vessel, agreed to pay the rate of freight in the charter-party on the number of tons actually delivered, but the defendants demanded freight on the number mentioned in the charter-party. This was finally paid under protest, and this action brought to recover it back. The court intimated a very strong doubt whether the master of a ship has any authority to send goods on without giving the agent of the owner any option to receive them, when the agent is known to be at the place. It was held that the master had no authority to bind the plaintiffs to pay dead freight for goods not actually transshipped, and that he could not bind the owners of the goods by a charterparty to provide a full cargo.

1 Andrews v. Roach, 3 Ala. 590.

2 In Hunter v. Prinsep, 10 East, 378, 394, Lord Ellenborough said: "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." See also Portland Bank v. Stubbs, 6 Mass. 422; Adams v. Haught, 14 Texas, 243. In Welch v. Hicks, 6 Cow. 504, the court held that it was a question for the jury to decide, whether the master intended bonâ fide to repair the vessel and complete the voyage, and whether the acceptance of the goods was voluntary on the part of the defendant, the shipper. For, if not, the court held that the ship-owner would not be entitled to any freight. See Armroyd v. Union Ins. Co. 3 Binn. 437.

3 In Dunseth v. Wade, 2 Scam. 285, goods were shipped at Cincinnati to be transported to Peoria under the usual bill of lading, which contained the clause,

As such words do not lessen, neither do they enlarge the master's duty, but they are construed as giving him a certain privilege, which he is not bound to exercise.1

SECTION VII.

FREIGHT PRO RATA.

Instead of transshipping, the master may tender the goods at the intermediate port to the shipper, and the shipper may refuse to accept, and then the master must transship if he can; or the shipper may accept the goods at that place, and then he must pay freight pro rata itineris; that is, must pay such part or proportion of the whole freight as the part of the voyage performed is of the whole voyage.2

"with privilege of reshipping on any good boat." Held, that the master was bound to deliver the goods at Peoria, unless their delivery was prevented by unavoidable accidents of the river. The court said: "What change in the terms of the contract did the words, 'with privilege of reshipping on any good boat,' written in the margin of the bill of lading, produce? Was the master discharged from all obligation in relation to the carriage and delivery of the goods at Peoria, by merely reshipping the goods on board any good boat'? Clearly not. He was to receive freight on the delivery of the goods at Peoria, for transporting the goods the whole distance. His obligations were consequently coextensive with the reward he was to receive." It was so held also in M'Gregor v. Kilgore, 6 Ohio, 358; Whitesides v. Russell, 8 Watts & S. 44. See also Broadwell v. Butler, 6 McLean, C. C. 296; Wilcox v. Parmelee, 3 Sandf. 610; Dalzell v. Steamer Saxon, 10 La Ann. 280.

1 In Sturgess v. Steamboat Columbus, 23 Mo. 230, where the bill of lading contained this provision, it was held, that the master was not bound to reship on account of low water.

The contract of affreightment, as we have seen, being entire, the ship-owner will not be entitled to recover on the contract unless it be completely performed. Sturgis v. Gairdner, 2 Brev. 233. But like any other contract this may be terminated by the consent of the parties to it. And if the contract is put an end to, and the shipper voluntarily receives his goods, the shipper has, from the earliest times, been held liable to pay a ratable freight. Roccus, note 81; Laws of Oleron, art. 10; Ordinance of Wisbuy, art. 16, 37; Consolato del Mare, and The Rhodian Laws as cited by Lord Mansfield, in Luke v. Lyde, 2 Burr, 882, 889; Maylne, Lex Mercatoria, p. 98; Lutwidge v. Grey, cited in Luke v. Lyde, and at length in Abbott on Shipping, 438; Luke v. Lyde, 2 Burr. 882. See also Parsons v. Hardy, 14 Wend. 215; Rossiter v. Chester, 1 Doug. Mich. 154; Hunt v. Haskell, 24 Maine, 339; Forbes v. Rice, 2 Brev. 363.

Many questions have been raised respecting this pro rata payment of freight, and some of them are not yet finally settled.

The principal question is, what acceptance on the part of the shipper lays upon him the obligation of this payment. Formerly, it was held, that any acceptance was sufficient to have this effect; now it seems to be the law that the acceptance must be voluntary. Questions of this kind are often complicated with the particular facts of the case, and it is therefore difficult to lay down any abstract rule which will serve to decide and determine all cases. If the earliest leading case be law, then if a ship is captured and recaptured and brought into any port nearer to her destination than the port from which she sailed, and there the shipper takes his goods, he must pay freight pro rata, whatever may have been the motive from which, or the compulsion under which, he took them. But this rule, which has been qualified in England, has been, if not positively set aside, modified in a yet greater degree in this country. Here, it now seems to be held, that the acceptance must be voluntary in substance and fact, or no claim for freight arises from it.2 According to the earlier view, if the goods arrived

1 Luke v. Lyde, 2 Burr. 882.

The difficulty in regard to the law on this point has arisen from losing sight of the nature of the contract. The master is entitled to take the goods on to the port of destination, and thus earn his freight, and the shipper has a right to say that this shall be done. If, therefore, the goods are given up to the shipper at the intermediate port, it must be by virtue of a new contract made by the parties. And as the shipper has a right to have the goods taken on, he cannot, against his consent, be compelled to receive them at the intermediate port. The case of Luke v. Lyde has been generally considered as warranting the broad position that the shipper is bound to pay a pro rata freight if he receives the goods at any place short of the port of destination, whether such reception be voluntary or not. And in some early cases in this country it seems to have been thus understood. United Ins. Co. v. Lenox, 1 Johns. Cas. 377; Williams v. Smith, 2 Caines, 13; Robinson v. Mar. Ins. Co. 2 Johns. 323. See also Post v. Robertson, 1 Johns. 24; Baillie v. Moudigliani, Park on Ins. 70. Whether the case of Luke v. Lyde justified such a construction is, at least, doubtful; but, however this may be, the law is now well settled that the acceptance must be voluntary. See Liddard v. Lopes, 10 East, 526; Cook v. Jennings, 7 T. R. 381; Mulloy v. Backer, 5 East, 316; Vlierboom v. Chapman, 13 M. & W. 230; Mar. Ins. Co. v. United Ins. Co. 9 Johns. 186; Welch v. Hicks, 6 Cow. 504; Center v. Am. Ins. Co. 7 Cow. 564, 582; Armroyd v. Union Ins. Co. 3 Binn. 437; Hurtin v. Union Ins. Co. 1 Wash. C. C. 530; Callender v. Ins. Co. of N. A. 5 Binn. 525; Gray v. Waln, 2 S. & R. 229; Caze v. Balt. Ins. Co. 7 Cranch, 358; Sampayo v. Salter, 1 Mason, 43; Col. Ins. Co. v.

at the intermediate port, the owner of them must either take and pay freight, or refuse to take at all. Now, if the possession of the goods is in fact forced upon him, if there seems to be no alternative, and he takes under what may be regarded as a strict compulsion, or if the goods or their proceeds are thrown upon him without his action, he thereby incurs no obligation to pay any freight.1

However reasonable this rule may be in theory, it must very often be of difficult application. The equity, in all these cases, would seem to be this: if the owner of the goods receives them at any intermediate port, with their value increased by the carriage of them to that port, he should pay the ship-owner for this increase of value. But if he sends them to one place, and receives them at another because he cannot well help himself, and they are worth

Catlett, 12 Wheat. 383; Hooe v. Mason, 1 Wash. Va. 207; Rossiter v. Chester, 1 Doug. Mich. 154; Adams v. Haught, 14 Texas, 243; The Nathaniel Hooper, 3 Sumner, 542. See also Pinto v. Atwater, 1 Day, 193; Dorr v. N. E. Mar. Ins. Co. 4 Mass. 221; Coffin v. Storer, 5 Mass. 252.

1 It was held, in Welch v. Hicks, 6 Cow. 504, that when a master refuses to repair his ship, and send on the goods, or to provide other vessels for this purpose, and the owner of the goods then receives them, this will not be a voluntary acceptance. So, too, where a vessel had been captured, and all the goods condemned, excepting those of the plaintiff, which were sold by the defendant, who claimed a right to deduct from the proceeds the stipulated freight for the whole voyage, or at least a pro rata freight, the court held that none was due. Sampayo v. Salter, 1 Mason, 43. Mr. Justice Story said: "But it never has been supposed that a pro rata freight was due, when by a capture the party has been incapable of performing the voyage, and the shipper has been compelled to receive his goods at the hands of the Admiralty." See also Mar. Ins. Co. v. United Ins. Co. 9 Johns. 186. In Armroyd v. Union Ins. Co. 3 Binn. 437, the vessel was condemned, sold, and the voyage broken up. The goods also were sold, and the net proceeds paid to the supercargo. Held no freight was due. In Hurtin v. Union Ins. Co. 1 Wash. C. C. 530, where the vessel was captured, but not condemned, and the supercargo thought it was for the best interest of all concerned that the goods should be sold, Mr. Justice Washington said: "But if it is received by compulsion, and the supercargo or captain is acting for the best, for the benefit of all concerned, with a view to preserve it for the person entitled to receive the proceeds, no freight is earned." See also Callender v. Ins. Co. of N. A. 5 Binn. 525; Gray v. Waln, 2 S. & R. 229; Caze v. Balt. Ins. Co. 7 Cranch, 358; Pinto v. Atwater, 1 Day, 193; Halwerson v. Cole, 1 Speers, 321. In The Nathaniel Hooper, 3 Sumn. 542, 566, Mr. Justice Story held an acceptance to be voluntary which, he says, " is, if I may so say, a reluctant acquiescence forced upon them by an overruling necessity." See also Richardson v. Young, 38 Penn. State, 169; Rogers v. West, 9 Ind. 400.

to him no more at this port than at the port from which they sailed, then nothing is due from him to the ship-owner. This we say is the equity of the case, and it is, we think, the tendency of the modern adjudications of this question to apply to each case a rule which will work out this equity.1

The master is not authorized to accept the cargo at an intermediate port, so as to charge the owner with a pro rata freight.2 And if he sells the cargo and the shipper lays claim to the proceeds, this does not amount to a voluntary acceptance on his part.3 If the shipper abandons the goods to the underwriter after the voyage is broken up, it has been held that a pro rata freight is due. This, however, must depend upon whether the owners of the vessel are ready and willing to send the goods on;5 for if the owners of the vessel take no steps to forward the goods, freight pro rata is not due."

It is obvious that no freight pro rata can be recovered on the original contract. A claim for it can be sustained only on the ground of an implied assumpsit; and. this again would seem

1 Coffin v. Storer, 5 Mass. 252. In accordance with this rule it has been decided that, where a vessel receives damage, and puts back to the port from which she started, and the master chooses to deliver up the goods when he is not obliged to, no freight will be due, because no beneficial service has been rendered by the ship-owners. Scott v. Libby, 2 Johns. 336; Miston v. Lord, 1 Blatchf. C. C. 354 ; Lord v. Neptune Ins. Co. 10 Gray, 109. See also Jordan v. Warren Ins. Co. 1 Story, 342. In the case of The Hiram, 3 Rob. Adm. 180, the vessel sailed on a voyage from Liverpool to Halifax. She was captured and brought back to Plymouth. Sir William Scott held that was the same as if she had been brought to Liverpool, for the shipper had derived no benefit from the voyage. He therefore held that no freight whatever was due.

2 Vlierboom v. Chapman, 13 M. & W. 230; The Ann D. Richardson, Abbott, Adm. 499, 1 Blatchf. C. C. 358; Miston v. Lord, 1 Blatchf. C. C. 354; The Brig Velona, U. S. D. C. Mass., Ware, J., Boston Courier, Dec. 15, 1857.

See p. 241, n. 1, and cases in note supra.

Van Norden v. Littlejohn, 2 Taylor, 16.
Smyth v. Wright, 15 Barb. 51.

• Atlantic Ins. Co. v. Bird, 2 Bosw. 195.

The action in Luke v. Lyde, 2 Burr. 882, although it is not so stated in the report of the case, was assumpsit, and not an action on the original contract. See Cook v. Jennings, 7 T. R. 381. Abbott also, in his Treatise on Shipping, p. 444, says that he had examined the record, and found that the declaration was for the freight of goods carried in the plaintiff's ship, without mentioning from or to what place. See also Christy v. Row, 1 Taunt. 300; Mulloy v. Backer, 5 East, 316; Liddard v. Lopes, 10 East, 526; Vlierboom v. Chapman, 13 M. & W. 230; Rob