ENTIRETY OF AFFREIGHTMENT CONTRACT 75. The contract of affreightment is an entire contract, so that freight is not earned until the contract is com pleted. On this subject Mr. Justice Story says in the Nathaniel Hooper, above cited: "The general principle of the maritime law certainly is that the contract for the conveyance of merchandise on a voyage is in its nature an entire contract, and, unless it be completely performed by the delivery of the goods at the place of destination, no freight whatsoever is due; for a partial conveyance is not within the terms or the intent of the contract, and, unless it be completely performed by the delivery of the goods at the place of destination, no freight whatsoever is due, and the merchant may well say 'Non in hæc fœdera veni.' Under this principle, in case of a marine disaster, the master has the right to repair and complete the voyage, although this action on his part involves delay; or he may transship the goods into another vessel and so save the freight. If the delay or the condition of the goods is such as to render either of these expedients unprofitable, he may sell the goods at an intermediate port, and terminate the venture, but in the latter case he would not be entitled to his freight.11 But if the voyage is broken up before completion, though from a cause beyond his control, he loses his freight.12 8 75. 11 Jordan v. Warren Ins. Co., Fed. Cas. No. 7,524; Hugg v. Augusta Ins. & Banking Co., 7 How. 595, 12 L. Ed. 834. If he carries part of the cargo contracted for, he can recover freight for the part so carried less damages for his failure to carry the rest. Edward Hines Lumber Co. v. Chamberlain, 118 Fed. 716, 55 C. C. A. 236. 12 Appam (D. C.) 243 Fed. 230. The voyage was not broken up when the crew left a ship under orders of a hostile submarine, with APPORTIONMENT OF FREIGHT 76. Freight is payable pro rata at an intermediate port, if the voyage is broken up, only by the consent of the consignee, either actual, or implied from his voluntarily receiving his goods at such intermediate port. This is not an exception to the general rule based upon the principle of entirety of contracts, that freight is only due when the voyage is completed. It is tantamount to saying that the parties, by mutual agreement, may rescind the contract at an intermediate port. Hence the acceptance of the goods at an intermediate port, not voluntarily, but in pursuance of a practical necessity on the part of the consignee to receive them, does not entitle the vessel to pro rata freight, and if the vessel incurs expenses before leaving the initial port at all, or "breaking ground," as it is technically called, no pro rata freight could be equitably claimed.18 A provision requiring the shipper to prepay the freight on delivery of the goods to the carrier, and authorizing the carrier to retain it if prevented from proceeding by causes beyond his control (for instance, an embargo), will be enforced, though the vessel never broke ground.14 The delivery of the cargo on a wharf with notice to the out the intent to abandon permanently; the ship having been subsequently brought into port. Bradley v. Newsum, 34 T. L. R. 613. § 76. 13 Sampayo v. Salter, 1 Mason, 43, Fed. Cas. No. 12,277; Tornado, 108 U. S. 342, 2 Sup. Ct. 746, 27 L. Ed. 747; Mitsui v. St. Paul Fire & Marine Ins. Co., 202 Fed. 26, 120 C. C. A. 280. As to the meaning of "breaking ground," see ante, p. 72, note 82. 14 Allanwilde Transport Corporation v. Vacuum 377, 39 Sup. Ct. 147, 63 L. Ed. 312, 3 A. L. R. 15; bers, 248 U. S. 387, 39 Sup. Ct. 149, 63 L. Ed. 392, 39 Sup. Ct. 150, 63 L. Ed. 321. Oil Co., 248 U. S. ; Bris, 248 U. S. consignee, or without notice, if that is the usage of the port, is a termination of the ship's liability as carrier. 15 The vessel owner is entitled to his freight if the goods arrive in specie, though they have been so injured as to be practically valueless, provided the injury is not caused by such acts as would render the carrier liable.16 In a suit by the vessel owner for freight, the consignee may in the same suit plead in recoupment any damage done to the goods for which the carrier is liable.17 The receipt of the goods by the consignee is an implied promise on his part to pay the freight (though such implication may be rebutted), and he may be sued for it personally.18 SHIP AS COMMON CARRIER 77. A ship may or may not be a common carrier, according to the manner in which she is being used. 78. A general ship is a common carrier. When is a ship a common carrier, and when not? The test is well laid down in the case of the Niagara,10 where the court says: "A common carrier is one who undertakes for hire to transport the goods of those who may choose to employ him from place to place. He is in general bound to take the goods of all who offer." Story thus defines a "common carrier": "To bring a person within the descrip 15 Constable v. National Steamship Co., 154 U. S. 51, 14 Sup. Ct. 1062, 38 L. Ed. 903. 16 Hugg v. Augusta Ins. & Banking Co., 7 How. 595, 12 L. Ed. 834; Seaman v. Adler (C. C.) 37 Fed. 268. 17 Snow v. Carruth, 1 Spr. 324, Fed. Cas. No. 13,144; Bearse v. Ropes, 1 Spr. 331, Fed. Cas. No. 1,192. 18 Trask v. Duvall, 4 Wash. C. C. 181, Fed. Cas. No. 14,144; Vane v. A. M. Wood & Co. (D. C.) 231 Fed. 353; Frontier S. S. Co. v. Central Coal Co., 234 Fed. 30, 148 C. C. A. 46. §§ 77, 78. 19 21 How. 22, 16 L. Ed. 41. See, also, Jaminet v. American Storage & Moving Co., 109 Mo. App. 257, 84 S. W. 128. tion of a common carrier, he must exercise it as a public employment; he must undertake to carry goods for persons generally; and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation pro hac vice." 20 From this definition it is clear that regular liners are common carriers, as is any ship that carries on business for all, and by advertisement or habit carries goods for all alike. A general ship is a common carrier.21 On the other hand, a ship chartered for a special cargo, or to a special person, is not a common carrier, but an ordinary bailee for hire.22 BILL OF LADING-MAKING AND FORM IN GENERAL 79. The document evidencing the contract of shipment is known as a "bill of lading." Even in the case of chartered vessels, and of course in the case of vessels trading on owner's account, the bill of lading is usually given by the master to the shipper direct, and binds the vessel or her owners to the shipper. Originally it was a simple paper. Here is an old form: "Shipped by the grace of God, in good order, by A. B., merchant, in and upon the good ship called the John and Jane, whereof C. D. is master, now riding at anchor in the river Thames, and bound for Barcelona, in Spain, 20 bales of broadcloth, marked and numbered as per margin; and 20 Story, Bailm. § 495. 21 Liverpool & G. W. S. Co. v. Phenix Ins. Co. (The Montana) 129 U. S. 437, 9 Sup. Ct. 469, 32 L. Ed. 788. 22 Lamb v. Parkman, 1 Spr. 343, Fed. Cas. No. 8,020; Dan (D. C.) 40 Fed. 691; Nugent v. Smith, 1 C. P. D. 423; C. R. Sheffer, 249 Fed. 600, 161 C. C. A. 526. HUGHES, ADM. (2D ED.)-11 1 are to be delivered in the like good order and condition at Barcelona aforesaid (the dangers of the sea excepted), unto E. F., merchant there, or to his assigns, he or they paying for such goods, per piece freight, with primage and average accustomed. In witness whereof the master of said ship hath affirmed to three bills of lading of this tenor and date, one of which bills being accomplished, the other two to stand void. And so God send the good ship to her destined port in safety. This form is substantially the same as that used to-day by the coastwise schooners. But under modern business methods a shipper of produce for export, like cotton, tobacco, or grain, can go to his railway station far inland, and procure a through bill of lading to England or the Continent. This is a very elaborate document, amphibious in nature, as half its stipulations apply to land carriage and half to water carriage. A sample may be seen in a footnote to the Montana.28 SAME-NEGOTIABILITY 80. A bill of lading is negotiable only in a qualified sense. It does transfer the title, but it is not so far negotiable as to shut out all defenses which could be made between the carrier and the original holder. For instance, in the Treasurer," the assignee of a bill of lading illegally refused to pay the freight. The consignee treated this as rescinding the contract of sale between him and the assignee for the cargo represented by the bill of lading, and sold it to a third party. The assignee thereupon proceeded against the ship. Judge Sprague held that, as he had illegally refused to pay the freight, the master could $ 79. 28 129 U. S. 401, 9 Sup. Ct. 469, 32 L. Ed. 788. § 80. 241 Spr. 473, Fed. Cas. No. 14,159. |