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Transhipment.

Whether ever compulsory.

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necessity. Even then, however, when things are near their worst, the practical rule of his conduct is also the supreme object of the master's functions and authority, the conveyance of the cargo to the place of destination; that is the purpose for which he has been entrusted with it, and this purpose he is bound to accomplish by every reasonable and practicable method."

If the master continue to pursue the voyage, after the vessel to his knowledge is become unseaworthy, without repairing her, although he has opportunity of doing so, this is a breach of his contract, and he and the owners are liable for any loss or injury to the cargo consequent thereon."

To repair the ship, therefore, if that be reasonable and practicable, is clearly his duty, in order to prosecute the remainder of the voyage, and he may retain the cargo till she is ready, unless, from the perishable nature thereof, that would be attended with serious injury. In that case, or in case the ship cannot be repaired at all, or not without unusual loss of time, he is at liberty to procure another ship and send on the cargo by it; this also he may do on the high seas, if the opportunity of transhipment occurs, and the occasion for it be pressing; and he is not answerable in that case, although his own ship actually survive the voyage, and the other perish with the cargo. It never has been decided in this country, whether under any circumstances he is bound to do this. By the Rhodian law'

1 Ante, c. iv. p. 134-145.

Duncan v. Benson, 1 Exch. 537; (in error) 3 Exch. 644, S. C.; Cammell v. Sewell, 3 H. & N. 617; 27 L. J. (Ex.) 447; Tronson v. Dent, 8 Moore, P. C. 419.

3 Worms v. Storey, 25 L. J. (Ex.) 1; 11 Exch. 427, S. C. That it is necessary to allege the master's knowledge of her condition, opportunity to repair, and neglect to do so, and loss in consequence of such negligence, see Hollingworth v. Brodrick, 7 A. & E. 40.

4 "The duty of the master, in case of damage to the ship, is to do all that can be done towards bringing the adventure to a successful termination; to repair the ship, if there be a reasonable prospect of doing so, at an expense not ruinous, and to bring home the cargo

and earn the freight if possible." Per Alderson, B., Benson v. Chapman, 2 House of Lords Cases, 696.

5 Laws of Oleron, art. 4-1 Pardess. 325.

6 Per Lord Stowell, in The Gratitudine, Mazzola, 3 C. Rob. 240, 257, et seq.

Shipton v. Thornton, 9 Ad. & E. 314; Luke v. Lyde, 2 Burr. 883, 887, 889; Lutwidge v. Grey, cited ibid.; and see post, c. x. p. 407.

8 See the doctrine of the civil law on this point of responsibility, Dig. 14. 2. 10, 1.

9 Εαν πλοῖον τρυπηση φορτια κομιζον, τα δε φορτια εξαιρεθῇ, επι τω ναυκλήρῳ εστω, εαν θελῃ εν τῷ πλοιῳ κομίζειν [ἢ εν τῷ συγκειμενῳ εμπορειῳ], εαν πλοῖον εξηρτημενον 7. Ει δε μη εξηρτημενον ή, αλλο δε πλοῖον επιφερῃ ὁ ναυκληρος εις ΤΟ

it is left discretionary; as it is by the laws of Oleron,' and would appear to be so left by the Ordinance of Wisby, did not a subsequent article, copied also into the Hanse Ordinance,2 bear evidence of a contrary disposition, thereby agreeing with the maritime law of Amsterdam. According to the interpretation put by Vinnius upon the Roman law, the master is thereby under no obligation to procure another ship when that by which he contracted to carry the goods is disabled. But the Antwerp' and Rotterdam Ordinances, as translated by Magens, employ the strongest terms of obligation. The French law, though phrased in the clearest language on this point, is so framed as to leave the intention thereof in doubt, and the most distinguished jurists of that country divided in opinion. Si le capitaine est contraint de faire radouber le navire pendant le voyage, l'affréteur est tenu d'attendre, ou de payer le fret en entier. Dans le cas ou le navire ne pourrait être radoubé, le capitaine est tenu d'en louer un autre. Si le capitaine n'a pu louer un autre navire, le fret n'est dû qu'à proportion de ce que le voyage est avancé. Looking at the first and third member of this provision, and the consequent effect upon freight which is operated by each, it is not unnatural to conclude that the second member is elliptically expressed, and should be construed as though followed by these words:-[ou de perdre le fret en entier]. Accordingly, it is the opinon of Valin and Pothier,"

συγκείμενον εμπορεῖον, δ ναυκληρος διδότω TO VаVÀOν άπаv. c. 42-1 Pardess. 256.

I conjecture that the clause which I have put in [] is a corruption, and should be εις το συγκείμενον εμπορείον, omitting. Pardessus does not notice it, translating however as though this were his text.

1 Art. 4-1 Pardess. 325; "il poet allouyer une autre neef a faire le vyage."

2 Ord. Wisby, art. 18-1 Pardess. 472; "il aura la faculté de louer un autre," is the translation of Pardessus. But art. 54 of the same Ord. p. 498 is thus rendered in part: "S'il est impossible au patron de réparer le navire pour se rendre à sa destination, il devra envoyer les marchandises par les voies de l'intérieur, à ses frais, sauf le droits

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Care of the
Cargo.

that he is no further bound to procure another vessel, than by losing his freight, if he omit to do so. Emerigon,' however, followed by Pardessus' and Boulay-Paty,' maintains that, by the express language of the law, and the nature of the trust reposed in the master, it is his duty to hire another vessel, if it be possible, for the cargo, and that he is answerable in damages if he neglect it.

Chancellor Kent, stating the law of America, says :-"In this country we have followed the doctrine of Emerigon, and the spirit of the English cases, and hold it to be the duty of the master, from his character of agent of the owner of the cargo, which is cast upon him from the necessity of the case, to act in the port of necessity for the best interest of all concerned; and he has powers and discretion adequate to the trust, and requisite for the safe delivery of the cargo at the port of destination. If there be another vessel in the same, or in a contiguous port, which can be had, the duty is clear and imperative upon the master to hire it; but still the master is to exercise a sound discretion adapted to the case.""

The spirit of the English cases,' decided since that passage was written, is not favourable to a liberal construction of any implied authority of the master in respect of the cargo, as agent of the proprietor; and whether his obligation with regard to it extends to any other than his own ship, still remains to be determined by the courts of this country. How the title to freight is affected by circumstances of such emergent disability remains to be considered in a subsequent chapter.'

The master is bound during the voyage to take all possible care of the cargo." He is not responsible for injury done to it in consequence of any of the risks covered by the exception in the charter-party or bill of lading; but damage by rats or mice

11 Emerigon, 422, 423; and per Boulay-Paty, the editor, 427.

especially Duncan v. Benson, 1 Exch. 537; (in error) 3 Exch. 644; as com

2 3 Pardessus, Droit Com. no. 715 pared with the language of Lord Stowell and no. 644.

32 Boulay-Paty, Droit Maritime, 400405.

43 Kent's Com. 212.

5 See Cammell v. Sewell, 3 H. & N. 617; (in error) 8 W. R. 639; Vlierboom v. Chapman, 13 M. & W. 230; but

in The Gratitudine, Mazzola, 3 C. Rob. 240, 257, et seq. And see Hunter v. Prinsep, 10 East. 378, 393.

6 Shipton v. Thornton, 9 A. & E. 314. 7 See post, c. x.

8 Emerigon, t. 1, p. 377; Consolato, art. 16-2 Pardess. 69.

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is not included under any of the usual words, and he must answer for any loss thereby, notwithstanding he maintains a cat on board. Such is the law of this country with regard to common carriers; but foreign jurists, of great eminence, differ on that point from the English law, holding the maintenance of a cat on board to be a good defence to an action for injury by rats or mice to the cargo. We have already seen that the master and owners being common carriers, their responsibility at common law is in the nature of insurers with regard to the cargo. What limitation of that responsibility is conceded to them by statute, we have also seen,' and what risks are usually excepted out of it, we shall yet see. Upon the principles of the common law, they are responsible for goods stolen or embezzled on board the ship by the crew or other persons, or taken by pirates, or destroyed by fire,' or lost or injured in consequence of the ship sailing in fair weather against a rock or shallow known to expert mariners. In like manner, where on a voyage from Hull to Gainsborough, a vessel was sunk in the river Trent, by striking against an anchor, and some of the goods on board were injured, the owners were held responsible for the injury, although the anchor lay under water, and the position of it was not marked by a buoy.'

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THE VOYAGE.

Lastly. When the ship has arrived at the place of her desti- TERMINATING nation, the master must take care to have her safely moored or anchored in the place appropriate to such a vessel engaged in the same trade," and prepare immediately to deliver the cargo. The person entitled to receive it is the lawful holder of the bill of lading, being the consignee named therein, or his assignee under a proper indorsement of the bill of lading." Under

1 Dale v. Hall, 1 Wils. 281; Laveroni v. Drury, 8 Exch. 166, 22 L. J. (Ex.) 2, S. C.

2 Roccus, not. 58, and see Jones on Bailments, p. 105. This rule is laid down in the Consolato del Mare, c. 22, 23 -2 Pardess. 75, and adopted by all foreign writers on this subject. Emerigon, t. 1, p. 377, 378.

3 Ante, p. 106. Ante, p. 109. Post, c. xi.

61 Co. Litt. 89; Roccus, not. 40; Wellwood, tit. 9, p. 30.

7 Hyde v. The Trent and Mersey Navigation Co., 5 T. R. 389; Forward v. Pittard, 1 T. R. 27.

Emerigon, tom. 1, p. 373; Roccus, not. 55.

9 Proprietors of the Trent and Mersey
Navigation v. Wood, East. Ter. 1785,
in K. B. 3 Esp. 127.

10 Ord. Wisby, art. 39-1 Pardess. 488.
11 Ante, c. viii. p. 339.

Delivery of
Cargo.

Lien for Payment.

Detention of part for freight of the whole.

ordinary circumstances, delivery ought not to be made except upon payment of freight and other charges incident to the conveyance of the cargo; but if the vessel is let to hire, so that possession is in another, the lien of the owners on the cargo for the hire of the ship is gone. Any lien is then in the owner pro hac vice, and he may enforce it. And even where the possession remains in the owners, they may yet have divested themselves of this common law right by their express stipulations in the charter-party as to payment.'

The other charges, besides freight, are, in ordinary cases, primage, and the usual petty average, as expressed in the bill of lading. In case of a general average loss, the civil law imposed on the master the duty of adjusting and settling the average, and allowed him to detain the cargo till the contribution in each case was paid. This power of detaining the cargo is also given by the laws of Oleron' and of France; and is recognised in this country as a lien which the master may enforce in that way. It is said, however, to be the practice in this country, in the case of a general ship, for the master to take security from the merchants, before he delivers the goods, for payment of their shares of this contribution when the average shall be adjusted."

In the case of a general ship, when the cargo belongs to several persons, some of whom have paid, and some have not, it becomes necessary to discriminate and detain only those goods that are subject to lien for the unpaid freight. Valin informs us, that the entire contents of a single bill of lading are to be considered as one part, although consisting of very different articles; but that the contents of one bill of lading are not bound to the payment due for the contents of another bill of lading, although consigned to the same person. In

1 Ante, c. viii. p. 308-315; and see Thompson v. Small, 1 C. B. 328; Lucas v. Nockells (in error), 4 Bing. 729; Alsager v. The St. Katharine's Dock Co., 14 M. & W. 794; Foster v. Colby, 28 L. J. (Ex.) 81; per Bramwell, Watson and Channell, BB.

2 Dig. 14. 2. 2.

3 Laws of Oleron, art. 9-1 Pardess. 329.

4 Co. de Com. art. 428; Ord. 1681, liv. 3, t. 8, art. 11-4 Pardess. 384. 5 Per Lord Tenterden, Scaife v. Tobin, 3 B. & Ald. 523, 528.

6 So deposed by a gentleman very conversant with this business, in the cause of Myer and Others v. Vander Deyl, Guildhall, Sit. p. M. T. 1803, before Lord Ellenborough, C. J.-Abbott. 7 1 Valin, 668.

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