VIII. CARRIER'S HIRE OR REWARD. § 634. One ground on which the carrier's responsibility arises, is the reward he receives for the carriage or transportation of property. Hence where the value of the goods delivered to him, is fraudulently concealed or misrepresented, the carrier cannot be held liable on the contract for the value of the goods.1 The hire, price or reward for the carriage, is of the essence of the carrier's contract;-he is not a common carrier unless he carries for hire. It is not however necessary that the hire should be agreed upon at a fixed sum. His character is such that the law implies an undertaking or promise to pay him a reasonable reward for the carriage of the goods delivered to him for that purpose.3 The carrier's duty to receive and carry all goods tendered to him, of the kind he usually carries, is qualified by his right to demand prepayment of his hire or compensation. But if he omit to demand prepayment, and refuse to receive the goods, a general tender of a reasonable reward for the carriage will be sufficient to charge him in an action for a refusal. Having received the goods for carriage without a prepayment of his hire or freight, the law gives him a right to demand his compensation on the delivery of the goods at the place of destination. And to secure this right a lien is given to him on the property. § 635. The contract generally regulates the payment of freight, and determines when it becomes due. Under an entire contract, freight becomes due on a fulfillment of the agreement according to its terms." Where a vessel is chartered for a voyage out and home, for a specific sum of money to be paid on her return, no freight is earned unless the vessel completes the homeward voyage; because by the agreement of the parties the outward and homeward voyage are one, and the profit depends on the entire performance. The contract is to be enforced, according to its terms, so as to carry into effect the expressed intention of the parties. 115. Jeremy on Law of Car., 33; Magnin v. Dinsmore, 62 N. Y., 35. 2 Satterlee v. Groat, 1 Wend., 272 ; 7 N. H., 157; 3 Barb., 388; 1 Fick., 50. 3 Allen v. Sewall, 2 Wend., 327; 6 Wend., 355; Merritt v. Earle, 29 N. Y., 419 Wend., 239; 2 Kent's Comm., 599. 10 N. H. 481; 12 Mees. & Welsb., 766; 5 Bing., 217. 6 Jeremy on Car., 84. 7 Barker v. Cheriot, 2 John. R., 352; Scott v. Libby, 2 John. R., 336. Penoyer v. Hallett, 15 John. R., 332; Liddard v. Lopes, 10 East, 529; Lorillard v. Palmer, 15 John. R., 14; S. C., 16 John. R., 348; the contract may be divisible; Burrell v. Cleeman, 17 John. R., 72. The contract being single and indivisible, as it generally is, freight can only be recovered on a delivery of the goods. Being drawn in such terms that the freight is to be paid by weight, measure or package, the contract is divisible, and freight may be collected on the goods delivered.2 § 636. The shipper or consignee, the party in interest, has a right to stand upon the terms of the contract; and a purchaser of the goods while in transit, taking the bill of lading in good faith, and relying upon it for the amounts and quality, is more favorably considered. He is not bound to accept different articles or quantities, nor will his acceptance of a part of the articles, without knowledge of any deficiency, preclude him from asserting his rights under the contract:3 he is not bound to receive or pay freight on a different kind of goods from those described in the bill of lading; he has a right, purchasing or making advances on the goods while in transit, to rely upon the statement of fact contained in the bill. The rule does not apply in favor of an immediate party to the bill, so as to exclude proof of fraud or mistake in the amount or quality of the goods actually shipped; and hence the carrier may recover freight, on delivering the goods received by him.5 G § 637. The freight to be paid a ship carrier for transporting goods, includes a compensation for lading them; the vessel need not therefore break ground or start on her voyage, to secure the benefit of the contract. If the shipper demands a redelivery of the goods before the ship sails, as he may do by the usage of trade, he must pay the stipulated freight, besides indemnifying the master against liability on any bill of lading given by him for the goods. An attaching creditor seizing the goods, is not allowed to withdraw them on any better terms. 1 Sayward v. Stevens, 3 Gray, 97; The Nathaniel Hooper, 3 Sumner, 554; Tirrell v. Gage, 4 Allen, 245; Sampago v. Salter, 1 Mason, 43; Case v. Baltimore Ins. Co., 7 Cranch, 358. 2 Ritchie v. Atkinson, 10 East, 295; Christy v. Row, 1 Taunt., 300; Price v. Hartshorn, 44 N. Y., 94; M'Gaw v. Ocean Ins. Co., 23 Pick., 405. 3 Byrne v. Weeks, 7 Bosw., 372. Dowes v. Perrin, 16 N. Y. 325; Bates v. Todd, 1 M. & R., 106; Berkley v. Watkins, 7 Adol. & Ellis, 29; the master is estopped from denying that he had the goods; Thompson v. Dening, 14 Meeson & W., 403. Meyer v. Peck, 28 N. Y., 590; 9 N. Y., 529. 6 Cutting v. Lyons, 1 Bos. & Pull., 364. 7 Tindall v. Taylor, 28 Eng. L. & Eq., 216; Bartlett v. Carnley, 6 Duer, 194. A shipper of goods on a railroad may resume control of them in a reasonable manner: C. & P. R. R. Co. v. Sargent, 19 Ohio St., 438; the shipper being the owner; Southern Ex. Co. v. Dixon, 15 Albany Law Journal, 491. The rule is the same where the owner shipping the goods, demands and receives them at some intermediate point, before reaching the place of destination, without any waiver of his rights by the carrier. On the same ground, where the shipper has the goods insured, and the insurer, after a damage covered by the policy, intervenes and takes possession of the goods as for a total loss under the terms of the policy, the carrier being ready and able and willing to continue the transportation to the place of delivery, is entitled to recover freight; pro rata itineris where he consents to surrender the goods.2 The insurer acts under a right derived from the owner and shipper; and the latter has the right to demand and receive the goods, on paying the stipulated freight. It follows that an acceptance of the goods by the insurer is equivalent to a receipt of them by the shipper; and the acceptance being voluntary, the carrier is entitled to pro rata freight.3 § 638. Freight is earned on the delivery of the cargo at the place of destination; and no freight is due on goods which perish by the perils of the sea, during the course of the voyage. But where a vessel is driven by the perils of the sea into an intermediate port, and is unable to proceed to the port of destination, and the owner elects to receive the goods at the intermediate port, freight pro rata itineris may be justly claimed on the goods so received. If the carrier offer to hire another vessel on which to forward the cargo, or is able within a reasonable time to repair his own vessel so as to proceed on the voyage, he is entitled to demand his full freight. But if the master, without sufficient cause, refuses to repair his ship or to send on the goods by another vessel, the owner may demand the goods, and is discharged from freight, both full and pro rata. To entitle the carrier to pro rata freight, there must be a voluntary acceptance of the goods by the owner; for if he be forced or constrained to receive them at the intermediate port, or lying derelict on the shore, this is not such an acceptance 1 Ellis v. Willard, 9 N. Y., 529; case of the ship Hooper, 3 Sumner, 542. 2 McKibbin v. Peck, 39 N. Y., 262. 3 Welsh v. Hicks, 6 Cowen, 504; Parsons v. Hardy, 14 Wend., 215; Smyth v. Wright, 15 Barb., 51, and cases there cited. The authority of these cases is. not affected by Atlantic M. Ins. Co. v. Bird, 2 Bosw., 195. 4 Frith v. Barker, 2 John R., 327; 6 Duer, 191. Robinson v. Marine Ins. Co., 2 John. R., 324; Smith v. Wright, 15 Barb., 51 Smith v. Wilson, 8 East, 437; Hustin v. Union Ins. Co., 1 Wash. C. R., 530; Callendar v. Ins. Co. of N. A., 5 Binn., 525; Dunnett v. Tomhagen, 3 John. R., 154. of them as will raise an implied promise to pay the freight to that place.1 The event on which pro rata freight is claimed, is not provided for in the contract between the partics. There is not therefore any legal claim to it, on an abandonment of the voyage at an intermediate port, founded on the original contract. The action must be based upon a new or implied contract, arising out of the situation, and the acts of the parties. The owner of the goods, having the advantage of a part performance of the original contract, ought to pay for the benefit he has received; and is held liable on an implied contract to that effect, where he voluntarily accepts the goods.2 § 639. When freight is paid in advance, on a contract for the carriago and delivery of goods, and the vessel is captured or shipwrecked, and the voyage broken up, the shipper is entitled to a return of the freight; the consideration, the transportation and delivery, having failed. The vessel being disabled on the voyage, the carrier may earn freight by sending forward the goods by another ship. So where a passenger took ship and paid his passage in advance from Amsterdam to Batavia, and on the voyage the vessel put into New York in distress, and the owner there offered him a passage in another ship, larger and more commodius, to Batavia, and he declined the offer; he was not permitted to recover back any part of the passage money; since it was his own fault that he did not proceed on his voyage. The contract being entire, a return can only be demanded on showing a failure to fulfill its terms.5 Passage money, and freight which is the hire or reward paid to the master and owners of vessels for the transportation of goods, and the price paid to the carrier for the conveyance of goods by land, are regulated by the same general principles, and recoverable under like circum 1 The Atlantic M. Ins. Co. v. Bird, 2 Bosw., 195; Kinsman v. N. Y. Mutual Ins. Co., 5 Bosw., 460, 474; Welch v. Hicks, 6 Cowen, 504; 7 Cowen, 564; 9 John. R., 19. 2 Welch v. Hicks, 6 Cowen, 504; Parsons v. Hardy, 14 Wend., 215; Smith v. Wright, 15 Barb., 51; 2 Campb., 466; 2 Burr., 881; 7 Term, 577; 5 East, 316; 10 East, 526; 9 John. R., 186; 2 Bosw., 195; Williams v. Smith, 2 Caines' R., 213; Richardson v. Young, 38 Penn. St., 169; Rogers v. West, 9 Ind., 400. 3 Watson v. Duykinck, 3 John. R., 335; Phelps v. Williamson, 5 Sandf., 578; Emery v. Dunbar, 1 Daly, 408; Griggs v. Austen, 3 Pick., 20; see same principle applied in Tompkins v. Dudley, 25 N. Y., 275; Tirrell v. Gage, 4 Allen, 245. Rosetto v. Gurney, 11 C. B., 176; Shipton v. Thorton, 9 A. and E., 314; 10 Gray, 443; 52 Maine, 265. Detouches v. Peck, 9 John. R., 210; Odgen v. Mutual Ins. Co., 35 N. Y., stances. If there is an agreement between the parties in respect to the freight or hire to be paid, the rights and duties of each grow out of the written stipulations between them.2 There being no express contract, the hire or freight becomes due on delivery at the place of destination; and being paid in advance, it may be recovered back, where it is not subsequently earned; unless the failure to earn freight is caused by the owner of the goods.* 3 § 640. The goods being damaged on the voyage by causes for which the carrier is responsible, the damages are to be deducted from the freight; either because no freight has been earned, or because the owner of the goods has a counterclaim for the loss he has sustained, and a right to have it deducted from the freight. The carrier does not perform his contract unless he transports and delivers the goods with diligence and skill; and if through his neglect or default the goods are injured to an amount exceeding the freight, he cannot recover anything for his services, the defence being properly interposed." as The carrier is also liable for any deficiency in the amount of the goods received by him; e. g., in a cargo of grain. The amount received and delivered being ascertained, he must answer for the deficiency; he must where he guarantees the quantity; or converts a part of the goods to his own use ; or fails without any legal excuse to deliver any portion of them.11 10 9 1 Mulloy v. Backer, 5 East, 321; Moffatt v. East India Co., 10 East, 468; 3 John. R., 335; 1 Peters, 126; 3 Pick., 20; 35 N. Y., 418. 2 Burgess v. Gun, 3 Harr., and John. R., 225; 10 Watts, 384; 13 East, 567; 5 Bosw., 460; 7 Ellis and B., 633. 3 Lane v. Penniman, 4 Mass., 91; 2 Sumner, 589; Quimby v. Vanderbilt, 17 N. Y., 306; Minturn v. Warren Ins. Co., 2 Allen, 86; Benner v. Equitable Safety Ins. Co., 6 Allen, 222; 9 Allen, 311; 13 Penn. St., 33; Briggs v. Vanderbilt, 19 Barb., 222. 4 Griggs v. Austin, 3 Pick., 20; 9 John. R., 210. B Angel on Car., § § 409-413. Leech v. Baldwin, 5 Watts, 446; Humphreys v. Reed, 6 Whart., 435; Edwards v. Todd, 1 Scam., 463; Ewart v. Kerr, 1 M'Mull., 141; 1 Rice, 203; Dickinson v. Haslit, 3 Harris and J., 345; Schureman v. Withers, Anthon N. P., 330; Dyer v. Grand Trunk R. Co., 42 Vt., 441. 7 Wright v. Baldwin, 18 N. Y., 428. The receipt contained in the bill of lading is prima facie evidence of the amount received by the carrier, and may be explained or contradicted. Abbe v. Eaton, 51 N. Y., 410. 9 Bissel v. Campbell, 54 N. Y., 353. The amount must be proved like any other fact, by the parties measuring the grain. 10 Ely v. Ehle, 3 N. Y., 503; Davis v. Pattison, 24 N. Y., 317. 11 Schieffelin v. Hawey, 6 John. R., 170; 24 N. Y., 317. |