"that by the contract, the shipowner, and the master as his agent, is bound to carry the goods to their destination in his own ship, if not prevented from doing so by some event which he has not occasioned, and over which he has no control. When, however, such an event has occurred to interrupt the voyage, as above defined, and the shipowner or master (for we think no distinction can be made between the two) has no opportunity of consulting the freighter, there seems to be much disagreement in foreign ordinances and jurists on the point, whether or not he is bound to tranship, or having contracted only to carry in his own ship, he is not absolved from further prosecution of the enterprise, by the vis major, which prevents his accomplishing it in the literal terms of his undertaking. By the Rhodian law, the laws of Oleron, art. 4, and the ordinances of Wisbuy, art. 16, the master was at liberty, but was not bound, to tranship. The old French ordinance, on the other hand, in precise terms imposed the obligation upon him: En cas que le vaisseau ne puisse être raccommodé, le maitre sera obligé d'en louer incessament un autre.'--Art. 11, tit. Du Fret (f). The terms of this ordinance occasioned, however, much controversy-Pothier and Valin maintaining they were not imperative, except as a condition of earning full freight; Emerigon, on the other hand, insisting that the duty was strictly cast upon the master as the agent of the freighters (g). The modern French code appears to adopt this view of the question. The words of the Code de Commerce (h) are, on this point, almost the same as those we have cited from the ordinance: and it is stated by Chancellor Kent, who, in his Commentaries, vol. 3, pp. 207, 212 (3rd ed.), very ably and learnedly sums up the whole question, That Boulay Paty and Pardessus, in their Commentaries upon it, have agreed in holding to the construction adopted by Emerigon.

"All authorities, however, are in unison to this extent, that the master is at liberty to procure another ship to transport the cargo to the place of destination; and in these words Lord Tenterden cautiously lays down the rule of our law. It may, therefore, safely be taken to be either the duty or the right of the shipowner to tranship, in the case above supposed. If it be the former, it must be so in virtue of his original contract—and it should seem to result from a performance by him of that contract that he will be entitled to the full consideration for which it was entered into, without respect to the particular circumstances attending its fulfilment on the other hand, if it be the latter, a right to the full freight seems to be implied the master is at liberty to tranship; but for what purpose, except for that of earning his full freight at the rate agreed on? In the case supposed, we may introduce another circumstance: let the

(f) Pothier, vol. 11, Traité des Contrats le voyage, l'affréteur est tenu d'attendre, ou de Louage Maritime, parts 1-3, s. 68; de payer le fret en entier. Dans le cas ou Valin, art. 11, tit. Du Fret, 1, p. 618. le navire ne pourrait être radoubé le capi(9) Traité des Assurances, vol. 1, ch. 12-taine est tenu d'en louer un autre. Si le

16.

(h) Art. 296.-Si le Capitaine est contraint de faire radouber le navire pendant

capitaine n'a pu louer un autre navire, le fret n'est du qu'à proportion de ce que le voyage est avancé.

owner of the goods arrive, and insist, as he undoubtedly may, that the goods shall not proceed, but be delivered to him at the immediate port, there is no question but that the whole freight at the original rate must be paid, and that, because the freighter prevents the master, who is able and willing, and has the right to insist on it, from fulfilling the contract on his part, and because the sending the goods to their destination in another vessel is deemed a fulfilment of the contract. If, therefore, the owner of the goods be not present, and personally exercises no option, still the shipowner, in forwarding the goods, must have the same rights, and in so doing, must be taken to exercise them with the same object in view.

"One question, however, has been asked, which it would not be right to pass over: What, it has been said, if the transhipment can only be effected at a higher than the original rate of freight-which party is to stand to that loss? By the French ordinance and the Code de Commerce (to which Chancellor Kent refers), the shipowner is entitled to charge the cargo with the increased freight; and, as a consequence of that rule, it becomes an average loss, and, in case of an insurance, must be made good by the insurers (i). No case of the sort, that we are aware of, has occurred in this country, nor is it necessary for us to express any opinion further than as bears on the present question.

"It may well be that the master's right to tranship may be limited to those cases in which the voyage may be completed on its original terms as to freight, so as to occasion no further charge to the freighters; and that, where freight cannot be procured at that rate, another but familiar principle will be introduced-that of agency for the merchant-for it never must be forgotten that the master acts in a double capacity: he is agent of the owner as to the ship and freight, and agent of the merchant as to the goods (k). These interests may sometimes conflict with each other; and from that circumstance may have arisen the difficulty of defining the master's duty, under all circumstances, in any but very general terms. The case now put supposes an inability to complete the contract on its original terms in another bottom, and therefore the owner's right to tranship will be at an end; but still, all circumstances considered, it may be greatly for the benefit of the freighter that the goods should be forwarded to their destination, even at an increased rate of freight; and if so, it will be the duty of the master, as his agent, to do so: in such a case the owner will be bound by the act of his agent, and of course be liable for the increased freight. The rule will be the same whether the transhipment be made by the shipowner or the master; and, in applying it, circumstances make it necessary, on the one hand, to repose a large discretion in the master or owner, while the same circumstances require that the exercise of that large discretion should be very narrowly watched."

(i) Emerigon, Traité des Assur. c. 12, s. 16. Code de Commerce, 350.

(k) But see, upon the extent of this double

agency, the case of Vlierboom v. Chapman, 13 M. & W. 230.

Moreover, the master must, during the voyage, take all possible care of the cargo (1). If it require to be aired or ventilated, as fruit and some other things do, he must take the usual and proper methods for this purpose (m); and although he is not responsible for injury done to it in consequence of a leak in the ship occasioned by tempest or other accident, yet if he neglect when in port to repair it, and loss or damage of goods result from his putting again to sea in an unseaworthy state, he and his owners will be responsible (n). Where rats occasioned a leak in the vessel, whereby the goods were spoiled, the master was held responsible for the damage, notwithstanding the crew afterwards, by pumping, &c., did all they could to preserve the cargo from injury (o). And this determination agrees with the rule laid down by Roccus, who says, "If mice eat the cargo, and thereby occasion no small injury to the merchant, the master must make good the loss, because he is guilty of a fault. Yet if he had cats on board his ship, he shall be excused" (p). This rule, and the exception to it, although bearing somewhat of a ludicrous air, furnish a good illustration of the general principle by which the master and owners are held responsible for every injury that might have been prevented by human foresight or care. In conformity to which principle they are responsible for goods stolen or embezzled on board the ship by the crew or other persons (q), or lost or injured in consequence of the ship sailing, in fair weather, against a rock or shallow known to expert mariners (r).

So where, in a voyage from Hull to Gainsborough, a vessel was sunk in the river Trent by striking against the anchor of another, which anchor lay under water, and without a buoy, whereby some goods in the former were injured, the owners thereof were held responsible for the injury (s).

If the master, being compelled to take refuge in a foreign port during the course of his voyage, has occasion for money for the repairs of the ship, or other expense necessary to enable him to prosecute and complete the voyage, and cannot otherwise obtain it, he may, as hath been before observed, either hypothecate the whole cargo, or sell a part of it for this purpose (t); in the latter case, if the ship reach the place of destination, the merchant will be en

(1) Emerigon, tom. 1, p. 337.

(m) See Davidson v. Gwynne, 12 East, 381.

(n) Worms v. Story, Exch. Mich. Term. (0) Dale v. Hall, 1 Wils. 281.

(p) Roccus, not. 58; and see Jones on Bailments, p. 105. This rule is laid down in the Consolato del Mare, cc. 65 and 66, and adopted by all foreign writers on this subject. Emerigon, tom. 1, pp. 377, 378. But see Laveroni v. Drury, 8 Exch. 166, in which it was held that the owner of a general ship is subject to the same responsibility for loss or damage of goods as a common carrier; and that having, by the terms of a bill of lading containing the usual ex

titled to receive the clear value for which the goods might have been sold at that place (u); or he may take the sum for which the goods actually sold, and, if he is content to do so, he may deduct that sum from the money payable for the freight of his other goods: and this, although the owner may have assigned the freight to a third person, and the goods were sold without an urgent necessity (v). If the ship afterwards perish, and reach not the destined port, the ordinance of Wisbuy expressly declares that the money raised by this sale shall be paid to the merchant by the master (w); and Cleirac, Kurick, Valin, and Pothier agree in opinion that the money is, in such a case, due not only from the master, but also from the owners, because it was expended for a purpose of which they were at all events liable to sustain the charge. But none of the other ordinances contain such a provision; and Emerigon contends, on the authority of the Consolato del Mare, and of the ordinances of Oleron and Antwerp, that the money is only payable in case of the safe arrival of the ship; which was the opinion also of several persons whom Pothier consulted. And this doctrine seems the most reasonable, as the merchant is not thereby placed in a worse situation than if his goods had not been sold, but had remained on board the ship. I cannot find that the question ever arose in this country. By the Code de Commerce, the master is to account for the price received, deducting the freight (x).

5. On the Completion of the Voyage.

When the ship has arrived at the place of her destination, the master must take care that she be safely moored or anchored, and report his ship and crew, and deliver his manifest and other papers, according to the law and custom of the place.

If any ship, coming to the United Kingdom or the Channel Islands, shall not come as quickly up to the proper place of mooring or unlading as the nature of the port will admit, without touching at any other place, or shall not bring to at the stations appointed by the commissioners of customs for the boarding of ships by their officers, or shall remove from such place (except directly to some other place)

(u) Alers and others v. Tobin and others, at Guildhall, October 30th, 1802, before Lord Ellenborough, Ch. J., and a special jury, in which the plaintiffs declared specially in assumpsit for not delivering the goods according to the contract in the bill of lading. And see Hallett v. Wigram, 9 C. B. 580; Laws of Oleron, art. 22; Ordin. of Wisbuy, arts. 35, 45, 69; French Ordin. liv. 2, tit. 1, Du Capitaine, art. 19; liv.3, tit. 3, Fret, art. 14, and Valin thereon; Pothier, Chartepartie, num. 33, 34. See also Molloy, book 2,

chap. 2, sect. 14; and Ordin. of Rotterdam, arts. 133-135; 2 Magens, 102, 103. But if the ship is lost on her voyage home, the shipper cannot claim the amount for which his goods would have sold if the ship had arrived. Atkinson v. Stephens, 7 Exch. 567.

(v) Campbell v. Thompson, 1 Stark. 490. (w) Art. 68. See Emerigon, tom. 2, p. 445, where the several authorities here referred to are cited. (x) Art. 298.

of mooring or unlading without the knowledge of the proper officer, the master of such ship shall forfeit a sum of 201. (y).

The officers of customs are empowered to board ships, and to remain on board until all the goods laden therein shall be duly delivered. The master must provide sufficient room under the deck, in some part of the forecastle or steerage, for their beds or hammocks. They are entitled to have free access to every part of her, to fasten down hatchways, and to lock up, seal, or mark any goods; and if the keys of any boxes or places that are locked are not delivered to them, they may break them open. The master is liable to a penalty of 100%., if any hatchways, after being fastened down by the officer, are opened; or if any locks, marks, or seals placed by him are wilfully broken or altered; or if the goods marked or sealed by the officer are secretly conveyed away.

No goods, except diamonds, bullion, lobsters, and fresh fish of British taking, and imported in British ships, which may be landed without report or entry, are, under pain of forfeiture, to be unshipped, unless, at the properly appointed place, within certain hours on working days, and in the presence or with the authority of the officers of customs (z).

Within twenty-four hours after a ship's arrival from parts beyond the seas, whether laden or in ballast, and before bulk broken, the master must make due report thereof, in a form required by the Act, and containing the several particulars indicated or required thereby; and if he wilfully fail to make such report, or if the particulars contained in such report be false, he forfeits 1007. (a). He must also, at the time of making such report, deliver to the collector, if required, the bill of lading, or a copy thereof, for every part of the cargo laden on board, and answer all questions which may be put to him by such collector, relating to the ship, cargo, crew, and voyage; and if he refuses so to do, or answers falsely, or if the bill of lading, or copy produced by him, be false, or the goods expressed therein have not been bona fide shipped on board, or if the bill of lading produced by him shall not have been signed by him, or such copy of it shall not have been received or made by him before leaving the place at which the goods are therein expressed to have been shipped, or if, after the arrival of his ship within four leagues of the coast of the United Kingdom, bulk shall have been broken, or any alteration made in the stowage of the cargo so as to facilitate the unloading of any part of it, or if any part of it be staved, destroyed, or thrown overboard, or any package opened, unless accounted for to the satisfaction of the commissioners of customs-in every such case such master shall forfeit the sum of 1007. (b).

He is bound also, under heavy penalties, not to commit or sanction any violation of the laws for the prevention of smuggling (c), the

(y) 16 & 17 Vict. c. 107, s. 47. (2) Sect. 49.

(a) Sect. 50.

(b) 16 & 17 Vict. c. 107, s. 53.

(c) Sects. 199--262.