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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 (b).

Even where a sale by the master at an intermediate port is Sale of cargo. justifiable and favourable to the charterer, it does not follow that he is liable to pay freight pro ratâ. Thus, where a ship having met with sea damage, the master put into an intermediate port, and, under circumstances that would justify him in so doing, sold a portion of the cargo to raise money necessary for repairs at a price beyond what they would have realized at the port of destination, and then, after the repairs were executed, completed his voyage, it was held that although the charterer received from the shipowner the proceeds of the cargo so sold, he was not bound to pay freight pro ratâ for its carriage (c).

In another 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

(b) Mitchell v. Darthez, 2 B. N. C. 555.

(c) Hopper v. Burness, 1 C. P. D. 137; and see Acatos v. Burns, 3 Ex. D. 282.

Acts of con

necessarily

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 (d). 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 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 (ƒ).

Even where the consignees of the goods accept the goods signees do not under such circumstances as to render themselves liable for pro ratâ freight, it seems that they have no implied authority to bind the charterer and to render him liable (g).

bind charterer.

(d) Vlierboom v. Chapman, 13 M. & W. 230. The rule of English law, as laid down in this case, was affirmed by the Court of Queen's Bench (dissentiente Cockburn, C. J.), and by the Court of Appeal, in Metcalfe v. The Britannia Iron Works Company, 1 Q. B. D. 613; 2 Q. B. D. 423. The judgment of Cockburn, C. J., contains a thorough review of all the authorities, English and foreign. See also Hill v. Wilson, 4 C. P. D. 329, in which it was held that to entitle a ship-owner,

in the absence of a special contract, to demand pro ratâ freight, where the goods have been sold at an intermediate port (being so much damaged as not to be worth forwarding), it must be shown that the owner of the goods had an option of having them sent on or of accepting them at such intermediate port.

(f) Blasco v. Fletcher, 14 C. B., N. S. 147.

(g) See Metcalfe v. Britannia Iron Works Company, 2 Q. B. D. at p. 432.

voyages.

It often becomes important, with respect to questions of Single and freight, to ascertain whether the contract is for one entire double 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 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.

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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 (). 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 Spainish 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 (i).

(h) See Malyne, p. 98; Smith v. Wilson, 8 East, 437; Mackrill v. Simons, Abbott on Shipping, 3rd ed. p. 316.

(i) Crozier v. Smith, 1 M. & Gr. 407; and see Hudson v. Hill, 33 L. J., C. P. 273.

Form of

ratâ freight.

It must be recollected, that where the contract provides for claim for pro 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 ().

RULES IN

COURT OF

TO PRO RATÂ

FREIGHT.

The Court of Admiralty, where questions as to freight freADMIRALTY AS quently arose in the cases of captured vessels, usually acted upon the same principles. 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 (7). There must be an entire execution of the contract, or such an execution as the shipowner 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 (m). If, however, the vessel herself is incapacitated, the owner cannot demand the freight, for which he stipulated only on the performance of his engagement (n). 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 (0).

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

(k) Cook v. Jennings, 7 T. R. 381; and see Liddiard v. Lopes, 10 East, 526. (7) See the judgments in The Diana, 5 Rob. 71; and in The Vrow Anna Catharina, 6 Rob. 271; also The Etrusco, cited 5 Rob. 69; and the cases collected in the following notes. This principle appears not to have been acted upon in The Racehorse, 3 Rob. 101; or in The Hamilton, cited by Sir W. Scott, ib. 107. (m) If in the case of transhipment the master, by the default of the owners

of the cargo, is unable to forward it to its destination, the whole freight is payable, The Soblomsten, L. R., I A. & E. 293; The Cargo ex Galam, Br. & L. 167; 33 L. J., P. M. & A. 97; The Cargo ex Argos, L. R., 5 P. C. 134.

(n) See the judgment of Sir W. Scott in The Fortuna, Edw. 57.

(0) The Hiram, 3 Rob. 180; The Wilhelmina, ib. 234; and the judgment in The Fortuna, ubi supra.

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 (p). 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 (9).

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 were bound to pay the expenses incurred by the ship on account of the cargo (r).

capture and

Captors who perform the contract by carrying the goods to Application of their destination are usually entitled to freight. This is the rule in cases of general rule (s). And in some cases, which are rather equitable substantial performance applications of this rule than extensions of it, it has been held, of contract. that freight is payable although the voyage has not been performed. Thus, where the goods had not been carried to the actual port of destination in Holland, but to this country, to which the merchants had intended them finally to come, and to which they would have been consigned in the first instance but for regulations of the Dutch Government which prevented their being brought here directly, the Court held that they had been brought to their real, although not to the nominal destination, and that freight was therefore due (t). And in the cases of the American ships bound to France or Holland, which were brought into the ports of this country under the prohibitory law in force

(P) The Copenhagen, 1 Rob. 289.
(2) The Werldsborgaren, 4 Rob. 17.
(r) The Isabella Jacobina, 4 Rob. 77.

(s) The Fortuna, 4 Rob. 278; The Diana, 5 Rob. 67; The Vrow Anna Catharina, 6 Rob. 269.

(t) The Diana, 5 Rob. 67.

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