ship back, because there was a danger of her being confiscated at the port of discharge, and landed the cargo, and afterwards legal proceedings having been taken by the owners of it to prevent him from selling it, it was by consent delivered into their hands without prejudice to the rights of the parties (t). In another case the goods were to be carried from Shields to Lisbon, and the freight was by the terms of the charter-party to be paid on a right delivery of the cargo; the ship sailed from Shields to Portsmouth, where she joined convoy, and after sailing from Portsmouth and being detained nearly a month by contrary winds, was recalled by the convoy, owing to the hostile occupation of the port of delivery; she then returned to Portsmouth, where the cargo was sold by consent of all parties without prejudice to their rights, after an application had been made to the shippers to accept the cargo, accompanied by a notice that the shipowners reserved their right to proceed for the freight, to which the former replied that they did not consent to the goods being landed if they were to be called upon for the freight. It was held, upon these facts, that no claim for freight pro ratâ could be sustained (u). Where the goods were to be delivered in London, and the freight was by the charter-party to be paid on a right delivery of the cargo, and the ship after capture and recapture was wrecked at St. Kitts, where the cargo was sold by the ViceAdmiralty Court on the application of the master, who acted bonâ fide, but without instructions from any of the parties, it was held, that the sale was tortious and unauthorized, and that no freight could be recovered (x). The Court distinguished the case on this ground from an earlier case (y), in which a ship and cargo having been condemned and sold by a French Court of competent jurisdiction, and this sentence having been afterwards reversed, it was held that freight pro ratâ was due, as the shipowners had been prevented from carrying the goods to the delivery port by no fault of their own, but only by the act of the foreign Court in ordering a sale pending the suit. The carriage of the goods, as far as it actually takes place, must also be the act of the shipowners, in order to entitle them to freight pro ratâ. A ship being chartered from London to (t) Osgood v. Groning, 2 Camp. 466. see also The Louisa, 1 Dods. 319. (y) Baillie v. Moudigliani, Park on Insur. 90. Buenos Ayres and to return with a cargo to a port between Gibraltar and Antwerp, the freight was to be paid in a gross sum on the delivery of the homeward cargo. The ship proceeded to Buenos Ayres and loaded goods on board, and then sailed for Gibraltar, but on her way she was obliged by sea perils to put into Fayal, where about one-third of the cargo was disposed of, partly on account of the goods having been rendered worthless by sea damage, and partly in order to defray necessary expenses. The remainder was left there by the master, who returned to England, leaving instructions with the ViceConsul at Fayal to forward it to Gibraltar, but without giving him any authority on the shipowner's behalf to contract for the hire of a vessel. The Vice-Consul thereupon chartered a vessel on behalf of the owners of the cargo, which carried the remainder of the cargo to Gibraltar and delivered it there on payment of freight. It was held, under these circumstances, that the carriage to the port of destination could not be said to be done by the shipowners, and that the charter-party freight was not payable; and also that no freight pro ratâ could be claimed in respect of the carriage from Fayal to Gibraltar, as this was not the act of the shipowners, but that a reasonable freight was due to them for the carriage from Buenos Ayres to Fayal from which the shippers had derived benefit, and after which they had, in fact, accepted the goods at Fayal, by their agent the ViceConsul, in order to forward them on to Gibraltar (2). The whole question of the right to freight pro ratâ itineris was also much considered in a more recent case, in which the principles mentioned above were recognized. In this case a cargo had been shipped at Batavia to be delivered to the plaintiff at Rotterdam; the vessel was compelled by stress of weather to put into the Mauritius, where the cargo was found to be so damaged that it was of necessity sold by the master, who acted in this respect bonâ fide, but without the knowledge of either the shipper or of the shipowner. The Court held that these facts afforded no presumption that the owner of the cargo had agreed to receive it at the intermediate port, and consequently that no freight had become due (a). In the cases mentioned above, in which freight pro ratâ has been recovered, it will be found that the further carriage of the (z) Mitchell v. Darthez, 2 B. N. C. 555. Form of claim. Single and double voyages. goods was intentionally dispensed with; but where before the completion of a voyage the goods and ship were seriously injured by sea perils, and the goods were returned by the master to one of the charterers not absolutely, but with an authority to him to act for the ship as well as the cargo, it was held (the goods having been sold by the charterer, under circumstances. found to be reasonable by the jury) that freight could not be claimed from the charterers, and that they were not liable in damages for wrongfully preventing the master from carrying on the goods and earning the charter freight. The Court was also of opinion, in this case, that the authority given by the master could not be countermanded by the shipowners after it had been acted upon and expense had been thereby incurred. In this case the ship was bound for Havana, with a general cargo under a charter-party at a lump freight; soon after leaving Liverpool the ship ran on the Irish coast and sustained serious damage, but was ultimately got into a port on that coast, where the whole of the cargo was found to be so damaged as to be either actually incapable of being taken on, or incapable of being carried to its destination in a merchantable condition, except a portion, in respect of which the action was brought, which was taken back to Liverpool and there sold, under the authority given by the master (b). Lastly, it must be recollected, that where the contract, whether it be under seal or not, provides for the delivery of the goods at a particular port, no action lies on it where this delivery is prevented, although there may have been an acceptance of the goods at an intermediate place. The right to freight, if it exist, arises out of a new contract, either express or implied (c). It often becomes important, with respect to questions of freight, to ascertain whether the contract is for one entire voyage, or for several distinct ones. Thus, if a ship is to proceed from A. to B. and back, it is material to consider whether this is meant to be one, or two distinct voyages; for if the outward and homeward voyages are intended to be distinct so far as relates to freight, the non-performance of the return voyage will not affect the claim to the outward freight. The determination of this question depends in all cases upon (b) Blasco v. Fletcher, 14 C. B., N. S. 147. (c) Cook v. Jennings, 7 T. R. 381; and see Liddiard v. Lopes, 10 East, 526. the terms of the particular contract that has been made. No general rule can be laid down. Several of the cases, however, which have been already cited as to conditions precedent to the right to freight, will be found to bear on this point. Expressions such as "the outward and homeward voyages are important to show an intention that they should be considered as distinct, and an opposite construction would probably be put upon a contract which contained a stipulation that the freight was to become due, or to be paid, at the home port (d). Where a charter-party provided that a vessel should ship goods for Kingston, or any other port in Jamaica, and having discharged the same should receive on board a cargo from thence, or from a port on the Spanish Main, if required, and deliver the same at a port in the United Kingdom on being paid a certain sum for freight in ten days after sailing from Gravesend, and a further sum in two months after a right delivery of the homeward cargo, provided she should be required to proceed to one port only in Jamaica, and a further sum should she be required to go to two or more ports in that island, and that in case she should be ordered to the Spanish Main, 47. per day was to be paid for every day after the twenty-fifth after her arrival at Jamaica, until despatched from her loading port, (demurrage at a certain sum per month, or in proportion for a less period, payable on settlement of the hire of the ship,) it was held, that the meaning of the parties was that the voyage to the Spanish Main was to be part of the homeward voyage, not an intermediate one, and that the 47. per day was not payable until two months after the delivery of the homeward cargo (e). as to freight. The Court of Admiralty, where questions as to freight fre- Rules in Court quently arise in the cases of captured vessels, has usually acted of Admiralty upon the same principles; but in some cases this Court has exercised a wider and more equitable jurisdiction over questions of freight. Thus, it has been frequently decided that, in ordinary cases, the goods must be carried to their destination before a claim for freight can arise (ƒ). There must be an entire execution of the contract, or such an execution as the shipowner (d) See Malyne, p. 98; Smith v. Wilson, 8 East, 437; Mackrill v. Simons, Abbott on Shipping. (e) Crozier v. Smith, 1 M. & Gr. 407. (f) See the judgments in The Diana, 5 Rob. 71; and in The Vrow Anna Catha rina, 6 Rob. 271; also The Etrusco, cited can effect consistently with any incapacity under which the cargo may labour. Where the non-completion of the contract is caused by an incapacity of this description alone, the goods owner cannot allege that the contract is not performed. If, however, the vessel herself is incapacitated, the owner cannot demand the freight, for which he stipulated only on the performance of his engagement (g). Thus, where a ship sailed on a voyage from Liverpool to Halifax and back, and after proceeding about half way to Halifax she was captured and recaptured, and brought back to Plymouth, and the charter-party showed that the intention of the parties was that the freight should be paid on the completion of the voyage, it was held, that no freight pro ratâ was claimable (h). Where a ship in distress put into an English port, after having performed the greater part of her voyage, and she was seized there, on suspicion, as a prize, and the cargo was necessarily taken out in order to repair the ship, but afterwards the cargo was restored, and at a later period the ship and part of the cargo were sent to London, the remainder of the goods being forwarded by another conveyance to its destination, it was held, that the shipowners were entitled to freight pro ratâ, and only pro ratâ, as the failure of the performance of the original contract was in no way owing to the cargo (i). And where a Swedish ship on a voyage to Lisbon was brought into an English port under an embargo against Swedish ships, and it became necessary to unload the cargo, which was claimed for merchants at Lisbon who were not subject to the embargo, and they were compelled to find another ship to convey it to its market, the Court held, that as the detention and the carriage of the cargo out of its course had arisen by reason only of the national character of the ship without any co-operation on the part of the cargo, no freight was payable (k). So, where a cargo belonging to English merchants was to be taken by a Swedish ship to Venice, and a few days after the vessel sailed she was obliged by bad weather to put into Falmouth, where she was detained under an embargo against Swedish ships, but her cargo was restored to the merchants, it was held, that they were not liable for any freight, although they (g) See the judgment of Sir W. Scott in The Fortuna, Edw. 57. (h) The Hiram, 3 Rob. 180; The Wilhelmina, ib. 234; and the judgment in The Fortuna, ubi supra. (i) The Copenhagen, 1 Rob. 289. |