article of the ordinance to give the right of abandonment to the merchant, in the case of leakage happening as well from the fault of the casks as from the perils of the sea, and to be an exception to the general rule laid down in the article immediately preceding. On the other hand, his countryman Pothier controverts this opinion, and contends that the article of the ordinance is to be confined to the case of leakage occasioned by peril of the sea; in which case he considers the real commodity-viz., the contents of the cask-to be absolutely lost, as much as if they had been washed overboard. "This opinion of Valin," says he, "appears to me to be contrary to principle. It is the fault of the merchant if he has put his goods into bad casks: it is his fault if they have leaked out, and have not arrived at the place of destination. He, therefore, ought to pay the freight; for, according to the principles of the contract of hiring, the hirer who by his own act or fault has not enjoyed the thing let to him ought to pay the hire as if he had enjoyed it. If the letter, who has been prevented from letting to other persons the part of his vessel occupied by the bad casks should not be paid the freight, he would suffer for the fault of the hirer, which is unjust" (0).

This argument of Pothier may show what ought to have been established by the ordinance, but it by no means proves that the interpretation given by Valin, and which agrees with the terms of "The Guidon," is not the true interpretation. The rule was probably introduced in early times to prevent disputes and litigation; and adopted by the framers of the French ordinance for the same reason (p).

In our West India trade, the freight of sugar and molasses is regulated by the weight of the casks at the port of delivery here, which in fact is, in every instance, less than the weight at the time of the shipment, and therefore the loss of freight occasioned by the leakage necessarily falls upon the owners of the ship, by the nature of the

contract.

Upon the propriety also of the rule laid down in the preceding article of this ordinance-namely, that which prohibits abandonment generally-these two learned foreigners have differed in opinion. "It must be agreed," says Valin, "that this rule is too rigorous to be compatible with equity. The natural idea that the mind forms of the agreement for freight is, that it has for its object that the goods shipped in pursuance of it shall be the only pledge for the freight, and consequently that upon the same goods alone can the payment of the freight be enforced. From whence it follows, that in every case (en quelque cas que ce soit) the merchant ought to be quit of the freight by abandoning his goods. This is also the opinion of Casa Regis, Disc. 22, n. 46, and Disc. 23, n. 86, 87. In the case of

(0) Traité de Charte-Partie, num. 60. (p) The Ordinance of Rotterdam on this subject seems to agree with the general rule of the French Ordinance. It declares, that when the goods are arrived at the intended

place, the merchant is obliged to pay the freight of what happens to be damaged or diminished without any fault of the master or ship's crew. Art. 155; 2 Magens, 105.

shipwreck, it is decided by the ordinance that the freight is not due when the goods are lost; now, when the goods are so injured by the shipwreck that he to whom they belong cannot derive from them wherewith to pay the freight, is it not the same to him as if they had been wholly lost by the mere act of shipment? If, then, he had not the power of abandoning the goods to discharge himself from the payment of the freight, his condition would be worse than if all had perished without resource, and this is what natural equity will not allow him to suffer." The learned commentator then proceeds to acquaint us that a practice prevailed in his country of not compelling the merchant to reclaim shipwrecked goods, and that unless he reclaimed them the master was never known to obtain the payment of the freight. On the other hand, Pothier (q), speaking of this article of the ordinance of his country, says: "This rule, notwithstanding what is said of it by Valin, is just, and conformable to the principles of the contract of letting to hire. It is sufficient, according to these principles, to make the whole hire due to the letter that he has wholly performed the obligation which he contracted, to give to the hirer the enjoyment of the thing let to hire; now, the master having transported the goods to their place of destination, it may be truly said that he has wholly fulfilled his obligation, and that he has given to the merchant the enjoyment of the ship for the use for which he had let it to him, since this transport was the only use for which they contracted. If the goods are found greatly damaged, and of no value, this is a matter that does not concern the master, because it is by an accident against which he does not warrant that they are reduced to this condition. The point of Valin's objection," proceeds he, "is, that it is the same thing to the merchant whether the goods are absolutely lost or become of no value. The answer is, that it is on the side of the master that we ought to consider whether this is the same thing. Now it is evident that this is not the same thing to the master. For when the goods are lost on the way, not having been able to transport them to the place of destination, he has not fulfilled the object of his contract-munere vehendi functus non est; and it is for this reason that the freight is not due to him: but when he has transported them, however injured they may be found, he has fulfilled the object of his contract— munere vehendi functus est—and by consequence the freight is due to him" (r).

In addition to this answer given by Pothier, it may be proper also to observe, that the argument of Valin seems to prove too much; for if the goods are to be the only security for the freight, and the merchant ought not to pay the freight, if they are not worth the amount

(q) Charte-Partie, num. 59.

(r) Pothier, Charte-Partie, num. 59. This is also conformable to the Code de Com. arts. 305, 310. See Boulay Paty, tom. 2,488. In America, also, the better opinion, and the one adopted in the case of Griswold v. The

New York Insurance Company, 3 Johns. Rep. 321, is against the right of the owner to abandon the deteriorated goods in discharge of the freight. Kent's Commentaries, Edin. edit. p. 217.

of it, the master and owners must lose the freight if the goods happen from any accident to come to a bad market, which is contrary to all law and reason; and further, that the foundation of the argument does not apply to this country, by the law of which, although the goods are pledged for the freight, yet the merchant also is personally responsible for it.

I have detailed the opinions of these learned foreigners thus at length, because they appear to me to comprise the whole argument on both sides of the question, which, as I have before observed, has not received a judicial decision in this country. It is true indeed, that Lord Mansfield, in a case that will be more fully stated hereafter, delivered himself to the following effect :-"As to the value of the goods, it is nothing to the master whether the goods are spoiled or not, provided the merchant takes them; it is enough if the master has carried them, for by doing so he has earned his freight; and the merchant shall be obliged to take all that are saved or none: he shall not take some and abandon the rest, and so pick and choose what he likes, taking that which is not damaged, and leaving that which is spoiled or damaged. If he abandons, he is excused freight, and he may abandon all, though they are not all lost." But it is to be observed, that the question of abandonment was not the point in issue in that cause; and, in fact, in that case the goods had not been carried to the place of destination, but the vessel, which was bound for Lisbon, had been captured and re-captured, and was carried with the goods into a port in Devonshire, where the merchant received them; and, therefore, if Lord Mansfield is to be understood to speak with reference to the case then before him, the sentiments delivered by him on that occasion cannot be considered as furnishing an authority for the decision of the question in the case of goods actually carried to the place of destination. It is true, also, that in the case of Lutwidge v. Grey and others, which will be fully cited for another purpose in a subsequent part of this chapter (s), it seems to have been taken for granted, by the counsel on both sides, that the merchants might have abandoned the whole cargo; but in that case the ship was wrecked, and the goods saved at a great expense, at a place short of the port of delivery; and the right of abandonment is spoken of with reference to the situation of the goods at that place. Most certainly the merchant cannot be compelled to accept his goods at any other place than the place of destination: even if the master should pay the salvage, and convey them to that place, the merchant may be allowed to have his option of accepting them or not, loaded with the additional expense of salvage. And accordingly, in another case, Lord Mansfield said, "The owner of the ship has a lien for freight, but in a total loss, literally so called, no freight is due; in case of a loss, total in its nature, with salvage, the merchant may either take the part saved, or abandon" (t). The only point intended to be proposed by me as doubtful, is the right to abandon for the freight

(s) Post, p. 389.

(t) Baillie v. Moudigliani, Park, ch. 2, p. 70.

alone at the port of destination; and, in point of practice, I have been informed that this right is never claimed in this country.

Bullion and specie have been sometimes sent from abroad to this country by merchants, in ships belonging to his Majesty, for which a remuneration was paid by the merchant. Questions have arisen as to the distribution of this money among officers of the King's ships; but as those questions do not seem to belong to this Treatise, I shall merely refer to the names of the cases in a note (u).

8. Of Freight when Part of the Goods only have been brought to the Place of their Destination, and of Freight, pro ratâ itineris peracti.

Having thus considered the cases in which the entire freight is to be paid according to the agreement, I now proceed to the consideration of those in which a part only of the stipulated sum may be claimed. And these are, first, when the ship has performed the whole voyage, but has brought a part only of the merchant's goods in safety to the place of destination; and, secondly, when the ship has not performed the whole voyage, but the master has delivered the goods to the merchant at a place short of the port of destination. In the case of a general ship, or of a ship chartered for freight, to be paid according to the quantity of the goods, there can be no doubt that freight is due for so much as shall be delivered the contract in these cases being distinct, or at least divisible in its own nature. But suppose a ship chartered at a specific sum for the voyage, without relation to the quantity of the goods (in which case the contract, as observed by Lord Chancellor Hardwicke (x), is more properly a contract for the use of the ship than for the conveyance of the merchandise), should lose part of her cargo by a peril of the sea, but convey the residue to the place of destination-in this case I do not find any authority for apportioning the freight. And it seems to have been the opinion of Malyne (y) that nothing would be due; and the case of Bright v. Cowper, which will be mentioned hereafter (~), may be considered as an authority in support of that opinion. But probably, if the question should arise again, the determination of it would depend upon the particular words of the charter-party; for without a very precise agreement for that purpose, it seems hard that the owners should lose the whole benefit of the voyage, where the object of it has been in part performed, and no blame is imputable to them.

The apportionment of freight usually happens when the ship, by reason of any disaster, goes into a port short of the place of destination, and is unable to prosecute and complete the voyage. In this

(u) Montagu v. Janverin, 3 Taunt. 442. Brisbane, Knt., v. Dacres, Widow, Executrix of Admiral Dacres, 5 Taunt. 143. Warren v. Sheriff, 5 M. & S. 32. Hamlett v. Richardson, 2 M. & S. 814.

C C

(x) In the case of Paul v. Birch, 2 Atk. 621; ante, ch. 2 of this part, sect. 3, p. 240. (y) Malyne's Lex Mercat. p. 100, (z) Post, p. 394.

case we have already seen that the master may, if he will and can do so, hire another ship to convey the goods, and so entitle himself to his whole freight; but if he is unable, or if he declines to do this, and the goods are there received by the merchant, the general rule of the ancient maritime law is, that freight shall be paid according to the proportion of the voyage performed-pro ratá itineris peracti (a).

Some writers (b) have endeavoured to trace this rule to the Digest of Justinian, but the passages referred to by them do not appear to contain such a regulation. The rule however is, without doubt, extremely ancient. It is to be found in the collection called the Rhodian Laws (c), but which collection is now generally agreed to be of a later date than the time of Justinian (d), and also in the Consolato del Mare (e). The rule, as laid down in the laws of Oleron (ƒ), is to the following effect :-If a ship depart with a cargo from Bordeaux, or other place, and it happens that the ship is disabled, and as much of the cargo is saved as possible, the merchants and master enter into a great debate, and the merchants demand to have their goods of the master, they may have them, by paying freight for so much of the voyage as the ship has advanced, rateably, and in proportion, if the master pleases; but if the master will, he may repair his ship if he can do it speedily; and if not, he may hire another ship to complete the voyage, and shall have his freight of the goods, to be reckoned according to their proportion to the whole cargo; and the goods shall pay the costs of their salvage. The rule is also to be found in Roccus (g)-who cites several more ancient authors in support of it-and all the subsequent writers on maritime law; and is adopted in most of the foreign ordinances, particularly in the French ordinance (h), which declares that "the master shall be paid the freight of goods saved from shipwreck, if he conveys them to the place of destination; if he cannot find a vessel to convey the goods saved, he shall be paid freight in proportion only to the voyage performed." So "if the master be obliged to repair his vessel during the voyage, the merchant must wait or pay the entire freight; and in case the vessel cannot be repaired, the master shall be obliged forthwith to hire another; and if he cannot find one, he shall be paid freight in the proportion only of what the voyage shall be advanced" (i). These obligatory words are said to mean only that the master must hire another ship if he will gain his whole freight (k).