during the war of the beginning of this century, the full freight was pronounced to be due where the owners of the cargoes elected to sell here, for the Court considered that a voyage from America to this country was nearly the same in effect as a voyage to the contiguous countries to which the vessels had been originally destined (u).

The decisions in the Court of Admiralty in the cases of neutral vessels carrying, in war time, cargoes liable to seizure, do not, properly speaking, form exceptions to the general rule mentioned above, since in these cases the voyage is, as against the party who is to pay freight, considered to be completed. Thus, it has been long settled that a neutral ship may carry the goods of an enemy, subject to the right of the other belligerent to bring in the ship for the purpose of obtaining an adjudication on the cargo (x). And it has usually been the practice of the Court of Admiralty to allow freight to neutral vessels, where the cargo is condemned as enemy's property, and the ship is restored: for in these cases capture is equivalent to delivery; that is to say, the captor who possesses himself jure belli of the enemy's goods is considered to represent the enemy, and since he prevents by his seizure the completion of the voyage, and the earning of the whole freight, the capture, as against him, operates as an actual delivery of the goods to the consignee (y).

(u) See the judgment of Sir W. Scott in The Friends, Edw. 246.

(x) See the judgments in The Bremen Flugge, 4 Rob. 91, and in The Vrow Henrica, ib. 347. The right of neutral ships to carry enemy's goods in time of war depends of course on the terms of particular treaties. In the treaty assented to at the Congress of Paris (April 16, 1856), it was declared (by art. 2), that the neutral flag covers enemy's goods with the exception of contraband of war; and (by art. 3) that neutral goods, with the exception of contraband of war, are not liable to capture under an enemy's flag. The history of and the authorities on this subject will be found in Twiss's Law of Nations, Chap. V., and Phillimore's International Law.

(y) See the judgment in The Copenhagen, 1 Rob. 291; the note to The Atlas, 3 Rob. 304; and the judgments in The Bremen Flugge, 4 Rob. 91, and in The Prosper, Edw. 76. If the ship and cargo, being both neutral, are restored, the ship must proceed and com

plete her voyage before she can demand freight. See the judgment in The Copenhagen, ubi supra. In these cases the captor takes cum onere, and the freight is a lien which precedes all other claims; unless, indeed, there have been mala fides in the transaction, or the ship has been guilty of a departure from pure neutral conduct; as, for instance, by carrying from one enemy to the colony of another allied in the war, or by carrying on for the enemy his coasting or his colonial trade, or by acting in his revenue service. See the judgment in The Vrow Henrica, 4 Rob. 347, and the cases cited at the commencement of this note; also The Rose, 2 Rob. 206; The Emanuel, 1 Rob. 296; The Immanuel, 2 Rob. 186; The Rebecca, ib. 101; and The Convenientia, 4 Rob. 201. See also the American cases, The Fanny, 10 Wheaton, 658; The Commercen, 2 Gallison, 264. The principle which is acted upon in these cases is, that on the breaking out of a war, neutrals have a right to carry on their accus

Freight is usually recoverable after capture and re-capture, if Effect of the voyage is completed (≈).

capture and re-capture.

of charter.

In a recent case the charter-party was held, under very Substantial peculiar circumstances, to be substantially performed, although performance the ship was unable to proceed to the particular port to which she was ordered. In that case the master of a Prussian ship agreed by charter-party with the plaintiffs to load a cargo at a foreign port in South America and proceed therewith to Cork, Cowes or Falmouth, for orders to any safe port in Great Britain or on the Continent between Havre and Hamburg. The cargo was loaded under a bill of lading which contained amongst other exceptions that of Queen's enemies. The ship arrived at Falmouth with the cargo on board, and she received orders to proceed to and sailed for Dunkirk; when off that port her master learned, as the fact was, that war had just broken out between France and Prussia. The ship then proceeded to Dover and there remained. The plaintiffs then demanded of the master delivery of the cargo at Dover, but made no offer to pay freight, and gave no orders to the master to sail to any port other than Dunkirk. In these circumstances it was held that as it was impossible for the ship to go to Dunkirk, and as the ship, without any breach of contract on the part of the shipowner, had arrived at Dover, which was one of the ports included in the charter-party, and as the plaintiff had demanded the cargo there, the shipowner was entitled to claim a lien on the cargo for the full freight (a).

It is said by Molloy, that if

tomed trade; but they are not entitled to engage in trades which are open to them only by reason of the accidents of the war. See The Wilhelmina, 2 Rob. 101, note, and the judgment in The Immanuel, ubi supra. Freight is not allowed if the articles carried are contraband according to the law of nations, such as tar or sail cloth; for indirect assistance is afforded to the enemy by the carriage of these goods. The Mercurius, 1 Rob. 288, and The Oster Risoer, 4 Rob. 199. It appears that tar, when the produce of the country of the owner of the cargo, may be carried subject to being brought in, not for confiscation, but for pre-emption. See the judgment in The Sarah Christina, 1 Rob. 241; and further, as

cattle are sent on board and the FREIGHT FOR

to contraband of war, post, Chap. VII.,
INSURANCE. The freight which the
captor must pay in these cases is
usually measured by the terms of the
charter-party; but if there has been
any fraud in the transaction, or if the
hazard of the war has raised the rates
of freight to an extraordinary degree,
this measure will not be adopted. See
the judgment in The Twilling Riget, 5
Rob. 85.

(z) See the judgment in Beale v.
Thompson, 3 B. & P. 428; and Bergstrom
v. Mills, 3 Esp. 36; see also Moorsom v.
Greaves, 2 Camp. 627.

(a) The Teutonia, L. R., 3 A. & E. 394; 4 P. C. 171. See The Patria, L. R., 3 A. & E. 436.

CATTLE.

EFFECT OF

CASE OF TIME

CHARTER.

freight is to be paid for their lading, it becomes due even although they die on the voyage, and that this is the rule if there is no particular agreement made either as to the lading or as to the transport; but that it is otherwise if the freight is to be paid for transporting them (b). In practice any case of this kind would depend upon the terms of the particular contract under which the cattle were shipped.

Questions have arisen as to the effect of a detention during DETENTION IN the voyage on the claim for freight where it is to be paid at so much for a given time, as, for instance, at so much per month. The determination of these cases depends also upon the terms of the contract. The general rule is, that the freight continues payable, if the detention does not defeat the object of the voyage, or suspend the contract, and does not proceed from the default of the shipowner (c).

EXPRESS

In a case in which the contract provided that a deduction PROVISION FOR Should be made from a gross sum payable for the freight, "in FROM FREIGHT case of the inability of the ship to execute or proceed on the

DEDUCTION

IN CASE OF
DELAY.

DAMAGE TO
GOODS AND

SHORT DE

LIVERY AS
AFFECTING

FREIGHT.

service;" these words were held to extend to an inability to proceed to sea caused by the death and desertion of some of the crew owing to the existence of small pox on board (d).

Prior to the Judicature Acts it was held, that where the goods were carried and delivered to the merchant, he was not entitled to abandon them, or to resist the payment of freight by reason of their being damaged, unless there was some stipulation to this effect in the contract. The injury to the goods, if caused by the negligence of the master, would only afford matter for a cross action (e). And where a complete cargo was to be laden

(b) See Molloy, B. 2, c. 4, s. 8. By the Roman law, if a contract was made for the carriage of slaves, no deduction was to be made from the freight in respect of any of them that might die on the voyage, unless it appeared from the agreement that the shipper intended to pay for those only who were safely landed. Dig. lib. 14, tit. 2. See, as to a contract to pay the highest freight which the shipowner could prove to have been paid for ships on the same voyage, Gether v. Capper, 15 C. B. 39, 696, and 18 C. B. 866. See

also McAndrew v. Chapple, L. R., 1 C. P. 643.

(c) See Havelock v. Geddes, 10 East, 555; Moorsom v. Greaves, 2 Camp. 627; Ripley v. Scarfe, 5 B. & C. 167, and Valente v. Gibbs, 6 C. B., N. S. 270; and also ante, pp. 324, 332, as to the suspension of the contract by war, blockade, or the like.

(d) Beatson v. Schank, 3 East, 233.

(e) Hotham v. East India Company, 1 Dougl. 271; Garrett v. Melhuish, 4 Jur., N. S. 943, V.-C. Stuart, Stimson v. Hall, 1 H. & N. 831; Alston v. Herring, 11

and delivered on freight being paid, it was held that the delivery of a complete cargo was not a condition precedent, the freighter having his remedy in damages for any short delivery (ƒ). Nor could the consignee of goods under a bill of lading deduct from the freight payable in respect of the goods delivered the value of articles which, although mentioned in the bill of lading, have by mistake never been shipped (g). Where freight was to be paid upon the right and true delivery of the cargo agreeably to bills of lading, it was held to be payable upon proof of the entire number of casks mentioned having been delivered, although it appeared that the contents had been damaged by the negligence of the master and crew; the party injured having in such a case his counter-remedy by action for the negligence (h).

But although the principle of these decisions remains unaffected, the provisions of the Judicature Act, 1873 (i), which entitle a defendant to set up a counter-claim by way of answer to an action, altogether alters their practical effect, because to an action for freight the defendant may now, subject to the provisions of the Rules of the Supreme Court, Ord. XIX., rule 3, set up in answer to the claim for freight, a counter-claim for damage to the cargo.

respect of

No claim can be set up by the purchaser of a cargo against Claims by the seller in respect of short delivery, if it appears from the terms purchaser in of the contract between them, that it was intended that the pur- short delivery. chaser should take the chance of the quantity turning out more

or less (j).

Where a cargo of wheat, to be shipped, had been sold, and the contract note mentioned certain quantities as the maximum and minimum to be shipped, it was held that the purchaser was entitled to refuse to accept the shipping documents, or to pay for the cargo, as the bill of lading and shipping documents

Ex. 822. In an action for freight due upon a charter-party, a plea, alleging that, by the fault of the master and crew, and their negligent and unskilful navigation of the vessel, the cargo was damaged, so that upon its arrival it was of less value than the freight, and that the charterer thereupon abandoned the cargo to the shipowner, was held bad. Dakin v. Oxley, 15 C. B., N. S. 646. The foreign authorities are fully discussed in the judgment of this case. See also The Norway, Br. & L. 377.

(f) Ritchie v. Atkinson, 10 East, 295; and see Christie v. Row, 1 Taunt. 300; Gibson v. Sturge, 10 Ex. 622; and see the judgment in White v. Beeton, 7 H. & N. 42. There is no case in which the delivery of less than a complete cargo has not been held to be apportionable.

(g) Meyer v. Dresser, 16 C. B., N. S. 646; 33 L. J., C. P. 289.

(h) Davidson v. Gwynne, 12 East,

381.

(i) Sect. 24, sub-s. 3.

() Covas v. Bingham, 2 E. & B.

AMOUNT AND
CALCULATION
OF FREIGHT.

represented the cargo to consist of a greater quantity than the maximum fixed. It was also held that the purchaser was not bound to pay for the cargo, or to accept shipping documents which represented it to be within the prescribed limits, if in fact it exceeded them (j).

The terms of the charter or bill of lading under which a cargo is shipped are usually sufficiently specific to make the amount of freight payable a mere matter of calculation (k). Questions, however, may arise as to the time and manner of measurement of the cargo according to which freight is to be paid, and which are of practical importance where a cargo increases or decreases in weight during the voyage. The rule to be followed in these cases was much discussed in a case where a cargo of corn shipped at Odessa became heated and damaged during the voyage whereby its bulk increased. It was held that freight was payable only on the quantity shipped, and not on its measurement at the port of discharge (1). To obviate this doubt, bills of lading sometimes provide that freight shall be payable on "nett weight delivered" (m); but where it is intended to make the freight payable on the quantity of cargo delivered apt words must be used. In a case where the charter-party stipulated that the ship should load a cargo of cotton and proceed with it to Liverpool, and deliver the same on being paid freight at the rate of 75s. per ton delivered, it was held that freight was payable on the quantity shipped, and that the word delivered was only inserted to show that any goods not delivered were not to be paid for (n). It is common in grain charter-parties to

() Tamraco v. Lucas, 1 E. & E. 581 -592. See also Tamraco v. Lucas, 1 B. & S. 185, where a question arose on a similar contract as to the sufficiency of a policy of insurance, tendered as one of the shipping documents.

() If there be no proof to the contrary the quantity named in the bill of lading will be taken to be that upon which freight must be paid. Tully v. Terry, L. R., 8 C. P. 679. It is not uncommon to reserve to the charterer the option of shipping any of several classes of goods, and to stipulate that a named rate of freight shall be paid if a particular class of goods is shipped, or that if other goods are shipped freight shall be paid in proportion according to the London Baltic

printed rates or other printed rates. As to the effect of such a stipulation see The Southampton Steam Colliery Company v. Clarke, L. R., 4 Ex. 73, 6 Ex. 57. The holder of a bill of lading comprising the whole cargo is commonly entitled to deduct address commission from the freight. Norway, Br. & L. 404. As to custom respecting discount see Falkner v. Earle, 32 L. J., Q. B. 124. As to the liability of the indorsee of a bill of lading to pay primage see Caughey v. Gordon, 3 C. P. D. 419.

The

(1) Gibson v. Sturge, 10 Ex. 622, where see the foreign authorities cited. (m) Coulthurst v. Sweet, L. R., 1 C. P. 649.

(n) Buckle v. Knoop, L. R., 2 Ex.