PRIMAGE AND Primage is a payment in the nature of a gratuity made by the freighter to the master of the ship upon delivery of the cargo. In virtue of long usage, it maintains its place, notwithstanding the jealousy of the common law, which allows no man to have an interest against his duty.' It is expressly stipulated in the charter-party and bill of lading of the common form, and though it be omitted from the former, it is yet recoverable if it appear in the latter. The early origin of this gratuity, and the master's right to it, have been touched on in a previous page.3 Average, usually named with primage, is scarcely now a reality, but it denominates what has heretofore been an insignificant per-centage due from the freighter, on receipt of his goods, and was supposed to cover some trivial expenses of the shipowner incurred in the navigation.* 1 Per Lord Ellenborough in Thompson v. Havelock, 1 Camp. 527; Diplock v. Blackburn, 3 Camp. 43; Gardner v. M'Cutcheon, 4 Beav. 534. 2 Best v. Saunders, M. & M. 208. NARY CIRCUM Non-performance of the contract of affreightment by either UNDER Ord of the parties to it, is not necessarily a reason for giving damages STANCES. to the other. Human laws, more consonant with the feebleness of man, tacitly acknowledge the evidences of a power superior to the force of his will, and beyond the reach of his understanding. It is only when men are so inconsiderate as to undertake, at all hazards, for future results, that law, under the sanction of their own authority, binds them to impossibilities, and visits them with damages for non-performance.' A carrier at common law is exempt from liability for nonperformance, when that is occasioned by the act of God or the 26; 1 Paradine v. Jane, Aleyn, 2 Co. Litt. 201 a; Blight v. Page, 3 B. & P. 295 note; Hadley v. Clarke, 8 T. R. 259; Barker v. Hodgson, 3 M. BY THE SHIP- In consequence of the Act of God. Queen's enemies, although there is no express stipulation to that effect. The contract of the shipowner, both in the charterparty and the bill of lading, when in the common form, is subject to an exception in the following terms:-"The act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation of whatever nature and kind soever excepted." The first words of this exception designate the immediate operation of purely natural agents, such as lightning, earthquake, and tempest, exclusive altogether of human intervention, but not so extensive as to comprehend what is merely inevitable.' Natural objects, as distinguished from agents, may undoubtedly become the occasion of damage, but only in combination with the agency of man, or with the spontaneous forces of nature. By natural agents, however, the law evidently intends the spontaneous forces of nature, when they are not collected and directed by man to the production of their proper effects. Moreover, if the operation of such forces on natural objects has disposed them so that damage afterwards is occasioned thereby, yet such damage is too remote to be excused by law, as within the meaning of the first phrase of this exception. Thus in an action' brought against the master of a vessel 1 The Trent Navigation Co. v. Wood, 4 Doug. 287; Forward v. Pittard, 1 T. R. 27. 2 Smith v. Shepherd. This cause was first tried at the summer assizes for Yorkshire, 1795, and the plaintiff non-suited; the judge being of opinion that no case of negligence was proved. The non-suit was set aside by the Court of King's Bench, and a new trial granted, that the facts might be more fully inquired into. It was tried a second time at the Lent assizes following. The account in the text is of the evidence given at the second trial, which differed in some particulars from that given at the first trial. In Easter term following, a new trial was moved for, but a rule to show cause refused. Several shipowners, being greatly alarmed at the decision of this cause, petitioned Parliament for an alteration : of the law on this subject and a bill passed the House of Commons, enacting that no owner or master of any ships or vessels, employed in the navigation of the high seas, should be liable to answer for any loss or damage, that should happen to any goods on board by any accident whatever, unless the same should happen or arise "by or through the robbery, embezzlement, secreting, or making away with, or by or through the actual default, of the said owner or owners, master, mariners, or other person or persons employed in and on board of such ships or vessels; any law, usage, or custom to the contrary thereof in anywise notwithstanding." And that no owner or master of any ship or vessel employed in the navigation of the tideway of any river, and not employed in the navigation of the high seas, should be liable navigating the rivers Ouse and Humber from Selby to Hull, by a person whose goods had been wetted and spoiled, it appeared in evidence, that at the entrance of the harbour at Hull there was a bank, on which vessels used to lie in safety, but of which a part had been swept away by a great flood some short time before the misfortune in question, so that it had become perfectly steep instead of shelving towards the river; that a few days after this flood a vessel sunk by getting on this bank, and her mast, which was carried away, was suffered to float in the river tied to some part of the vessel; and that the defendant upon sailing into the harbour struck against the mast, which forced his vessel towards the bank where she struck and would have remained safe, had the bank been in its former situation, but on the tide ebbing her stern sunk into the water and the goods were spoiled. The defendant upon this tendered evidence to show that there had been no actual negligence; Mr. Justice Heath rejected the evidence, and further ruled that the act of God, which could excuse the defendant, must be immediate, whereas this was too remote; and he directed a verdict for the plaintiff. The Court of King's Bench afterwards approved of this direction, and the plaintiff had judgment. The stipulation against all acts of the Queen's enemies, in- The Queen's volving not only the municipal law of contract, but the principles of the law of nations in relation to the commercial marine as affected by the existence of hostilities, may be more conveniently reserved for concise notice at the close of this chapter. Enemies. The exception of "fire" is important in relation to the Fire. liability of the common carrier for goods destroyed by that means, though accidentally;' and, as it is no protection where there is actual fault or privity on the part of the owner, it to answer for any loss or damage that But this bill was rejected by the This led to the alteration of the bill of Forward v. Pittard, 1 T. R. 27; Trent Navigation Co. v. Wood, 4 Doug. 287. Dangers of the Additional Exception. coincides in effect with the statutory limitation already mentioned,' and beyond that extends, of course, to every owner of a ship, whether sea-going or not, who makes the stipulation. The statutory limitation to the owner's responsibility for injury done by fire is, that "No owner of any sea-going ship, or share therein, shall be liable to make good any loss or damage, that may happen without his actual fault or privity, of or to any goods, merchandise, or other things whatsoever, taken in or put on board any such ship, by reason of any fire happening on board such ship." 3 The dangers of the sea, rivers, and navigation, include loss by pirates, by collision when it is without fault or negligence,' and, of course, the common risks of navigation from rocks, sands, rapids, and the like, when the loss occasioned thereby happens without negligence or default in the master or crew.5 But if a vessel under charter to proceed to Galatz, on the Danube, and load a cargo there, is prevented from crossing the bar at the mouth of that river on her way to the port of loading, non-performance in consequence is not within this exception." When ships homeward-bound from the West Indies are required to bring off the cargo from the shore to the ship in their boats, an addition is made to the usual exception, which then terminates thus:-"dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, save risk of boats, so far as ships are liable thereto, excepted.” Whatever be the meaning of these English words in this connection, the Courts perceiving the purpose for which they were added, have held that they were unnecessary, and that, with or without them, the shipowner, in such a trade as the West Indian, incurs no greater or other liability with regard to 1 Ante, c. iii. p. 109. 2 17 & 18 Vict. c. 104, § 503. 3 Pickering v. Barclay, Style, 132; 2 Roll. Ab. 248. So the Civil Law, Inde Labeo scribit, si quid naufragio aut per vim piratarum perierit, non esse iniquum exceptionem ei dari. Dig. 4. 9. 3, 1. 4 Buller. Fisher, 3 Esp. 67. 5 Roccus, not. 55; Straccha de Navibus, pt. 3, no. 32; Fletcher . Inglis, 2 B. & Ald. 315; and see Smith v. Shepherd, ante, p. 456. 6 Schilizzi v. Derry, 4 E. & B. 873; 24 L. J. (Q. B.) 193, S. C. |