of the captain; it was held that the freighter was entitled to load an assorted cargo of any "legal merchandise," but that freight was payable on the supposition that the cargo consisted of 100 tons of bark, 60 tons of tallow, 20 tons of hides, and the residue of wool, pressed or unpressed.' Where it had been agreed that a ship should load at Baltimore, "a full cargo of produce" on freight "at and after the rate of 58. 6d. per barrel of flour, meal, and naval stores; and 11s. per quarter of 480 lbs. for Indian corn or other grain;" and that the cargo should not consist of less than 3000 barrels of flour, meal, or naval stores, the flour or meal not to be less in quantity than the naval stores. The cargo actually shipped, however, consisted of 769 cwt. of tobacco, 6047 bushels of bran, 2000 bushels of oats, 5000 oak staves, and three barrels of flour; and it appeared upon evidence, that whilst a quarter of Indian corn or wheat weighing 480 lbs. would occupy only 10 cubic feet of space, a quarter of American oats, weighing upon an average 272 lbs., would require 16 cubic feet; and that oats were not a usual shipment from America. Under these circumstances it was held that "other grain" in the charter-party must mean such as would average 480 lbs. a quarter, to the exclusion therefore of oats; and that the merchant had bound himself, if not to load, at least to pay, as though he had loaded, 3000 barrels of flour, meal, or naval stores, and Indian corn, or other grain averaging 480 lbs. at 11s. per quarter for the rest of the space.2 It was agreed with a shipbroker to send a vessel on a certain voyage in consideration of the freights averaging 408. per ton and of there being nine cabin passengers, their passage money to average 751. each; and in fact the contract was performed in all except this, that the freight averaged only 328. per ton; but the money realised from the conveyance of steerage passengers if added to the 32s., would bring it up to the stipulated sum, and it was contended that this was a performance of the contract. The Court however thought otherwise, refusing to admit Cockburn v. Alexander, 6 C. B. 791; recognising the authority of Thomas v. Clarke, 2 Stark. 450; Capper v. Forster, 3 Bing. N. C. 938; see these cases considered, post, c. x.— Freight, pp. 387, 388. 2 Warren v. Peabody, 8 C. B. 800. Undue advantage of intermediate Voyage. LANDING AND Duty to receive evidence to show that by the usage of the trade, cargo and freight comprised steerage passengers and their passage money, and the master recovered the difference.' A stipulation for power to send the vessel from the port of discharge round to another port, on payment for the extra time, does not entitle the charterer to put a cargo on board for such intermediate voyage.2 If once bills of lading for the cargo on board have been given by the master, the charterer cannot have the goods relanded, or have new bills of lading signed for a different destination, without giving up the bills of lading already signed, or at least tendering an indemnity against all the consequences of not performing the contract therein contained.' The freighter is bound to watch for the arrival of the ship, not being entitled to notice thereof from the master,* and to be ready to receive the cargo within a reasonable time afterwards, or within the stipulated lie-days, at the peril of damages for further delay. But if his agent abroad, without any authority, substitute and perform a different contract from that in the charter-party, the freighter may repudiate the transaction and refuse to receive the goods. This, however, he is not warranted in doing, merely on the ground of some doubtful dispute between himself and the factors of the shipper, although it be about the quality of the cargo; but, in any case, his refusal, in order to avail the shipper or the master as a dispensation from their contract to deliver, must be clear and decisive, and given at a time when the master is ready to discharge.* 1 Lewis v. Marshall, 7 M. & Gr. 729. According to Kent (3 Com. 219), there is an American use of the term freight, which includes passage money; such a use of the term is not English, and I do not think it enters even into the jargon of trade in this country. 2 Cockburn v. Wright, 6 Bing. N. C. 323. 3 Davidson v. Gwynne, 12 East, 381; Tindall v. Taylor, 4 E. & B. 219. As to the shipowners' right to freight, in case the goods are relanded, see post, c. x. p. 405. 4 Harman v. Clarke, 4 Camp. 159; Harman v. Mant, 4 id. 161. Rodgers v. Forresters, 2 Camp. 483; Randall v. Lynch, 12 East, 179, 182. 6 Sickens v. Irving, 29 L. J. (C. P.) 25. 7 Erichsen v. Barkworth (in error), 28 L. J. (Ex.) 95; below, 3 H. & N. 894. 8 See Ripley v. McClure, 4 Exch. 345; Esposito v. Bowden (in error), 7 E. & B. 763; Reid . Hoskins (in error), 6 E. & B. 953; Avery v. Bowden (in error), ibid.; Barrick v. Buba, 2 C. B. N. S. 563; 26 L. J. (C. P ance. Some of the ancient maritime codes and more modern Non-perform. foreign ordinances,' have fixed the payment to be made by the merchant, who, after taking a ship to freight, declines to lade her in pursuance of his agreement; or before the commencement, or during the course of the voyage, withdraws his goods from the ship; or having hired a ship to go to a distant port and engaged to furnish a cargo homeward, fails to do so, whereby the ship is forced to return empty; the money to be paid as compensation to the owners being in some instances the whole, in others a moiety of the sum, that would have become due as freight. But in all these cases the law of England leaves the amount of the compensation to be ascertained by a jury, if the parties cannot agree about it: and a jury will form their estimate upon a consideration of all the circumstances of the case, and of the real injury sustained by the owners, which cannot be properly settled by positive rules. Average. We have seen by a copy of the bill of lading,' that the master Primage and undertakes to deliver the goods upon the payment of freight with primage and average accustomed. The word primage denotes a small payment to the master for his care and trouble, which he is to receive to his own use, unless he has otherwise agreed with his owners. This payment appears to be of very ancient date, and to be variously regulated in different voyages and trades. In the "Guidon" it is called, "la contribution des chausses ou pot de vin du maître." It is sometimes called the master's hat money. The word average in this place denotes several petty charges, which are to be borne partly by the ship and partly by the cargo, such as the expense of trimming, beaconage, &c. Some of the foreign ordinances specify the particulars that fall under this head, and the mode of distributing the charge,' but with us 280; Hochster v. De La Tour, 22 L. J. (Q. B.) 455. 1 Consolato, c. 36, 39, 40, compared with c. 58, 59-2 Pardess. 81, 83, 107, 108; French Ord. liv. 3, tit. 3, Fret, art. 3 & 6, and 8 & 9-4 Pardess. 361; and Valin, in loco; Code de Com. art. 288, 291, 293, 294. Guidon, c. 9, art. 11 2 Pardess. 408. 2 See Smith v. McGuire, 3 H. & N. 554; and post, c. xi.—Non-performance. 3 Ante, c. viii. 4 French Ord. liv. 3, t. 7, art. 8-94 Pardess. 381; Ord. Stockholm, t. Average, art. 1-2 Magens, 277; Ord. Wisby, art. 48, 60, 66-1 Pardess. 495, they depend entirely upon usage, and an attempt to enumerate them would afford neither instruction nor entertainment. This and the preceding article of primage are often commuted for a specific sum or a certain per-centage on the freight. Two acts essential to complete performance of the contract of affreightment, the payment of freight, and of demurrage, are, in consequence of their great importance, reserved for consideration in a separate chapter. 500, 502; Guidon, c. 5, art. 12-192 Pardess. 391-392; Commentary of Cleirac on art. 24 of the Laws of FREIGHT is the reward payable for the safe conveyance and FREIGHT. delivery of goods entrusted for that purpose to a carrier by sea; the title thereto is conditional on performance; and pay- WHAT IT IS. ment thereof is secured to him by a lien at common law on the goods carried. Other sums payable in advance, and not dependent on performance of the carrier's contract, are not of the nature of freight, though often called by that name; the incidents of freight do not attach thereto, and the master cannot detain the goods for non-payment thereof unless there is a lien |