sult is, that the better and prevailing doctrine is now in harmony with that of the French Ordinance, and the opinion of Emerigon upon this subject.

The laws of Oleron and Wisbuy seem to invest the master with power, but do not expressly impose upon him the duty of exerting that power. By these codes, the duty is not imperative; but they left it optional with the master, to hire a ship for forwarding or transhipping, or not, at his discretion.

But the ordinance of Louis XIV. was more pronounced in its directions; and prescribes the duty positively and precisely.

So much of the laws of Oleron, as relates to this subject, may be found in article 4, Jugemens d'Oleron, and reads substantially as follows: If the master can promptly repair or refit his own ship, he may do so; or, if he chooses, he may freight another to complete the voyage.

So much of the laws of Wisbuy as relates to this subject, is contained in article 16; and may be read substantially thus: The master may fit out his own ship, if he can seasonably do so, to complete the voyage; if not, he may transfer the cargo to another ship destined for the same port to which he was bound, paying freight therefor.

The French Ordinance (art. 11, tit. 3, book 3), contains its direction as to transhipping and proportional freight, and reads thus: "Si le maître est contraint de faire radouber son vaisseau pendant le voyage, le chargeur sera tenu d'attendre, ou de payer le fret entier; et, en cas que le vaisseau ne puisse être raccommodé, lè maître sera obligé d'en louer incessamment un autre ; et s'il n'en peut trouver, il sera seulement payé de son fret à proportion de ce que le voyage sera avancé." 1

1 "If the master be compelled to recaulk his ship during the voyage,

the

VALIN, POTHIER, AND EMERIGON.

373

It will be perceived that by the laws of Oleron and Wisbuy the power to tranship is conferred upon the master, without any obligation to exert it; but, by the French Ordinance, he not only has conferred upon him that power, but it is made his duty to exert it. If then, a master has such power, at any intermediate port, he ought, as a faithful agent and steward for ship-owner and shipper, promptly to reship and tranship, if practicable, to the destined port; personally overlooking and superintending the transfer and stowage of cargo, in order that it may proceed in good condition and order.

This is a master's duty according to the more modern doctrine; and is so recognized substantially in the admiralty courts of England and the United States. This doctrine results, as a necessary logical sequence, from the position and appointment of the master; is duly derived from principles prescribed by the more ancient · commercial nations, and is founded in solid reason, as well as sustained by high authority.

Nevertheless, eminent foreign jurists have widely differed with each other, in their comments upon and construction of some portions of the Ordinance. Mr. Kent (3 Com. 269) represents Valin and Pothier as totally at variance with Emerigon in reference to the master's duty to substitute another vessel (louer inces samment un autre) in order to tranship and transport the cargo onward to its destination, or to the freighter. For thus forwarding, in good condition, goods which

freighter must wait or pay full freight; and in case the ship cannot be repaired, the master is bound instantly to engage another; but if another cannot be found, then he shall only be paid freight in proportion to so much of the voyage as he shall have performed."

374

DISCUSSION PRODUCED BY DIFFERENCES;

might otherwise deteriorate or perish, the master may entitle himself, ship, or owner to freight; whereas, by not so sending forward the cargo, the freight due might be lost. The reference by Mr. Kent to Emerigon is to that part of his commentary on another article of the Ordinance than the article cited in this chapter; and therefore may be deemed by the student worthy of reexamination.

The discussion in Emerigon more particularly relates to art. 7, in title 1, book 3, " des charte-parties"; and also to art. 15, in title 3, "du fret ou nolis." In the 428th page of Emerigon, he says: "If there happens interdiction of commerce with another country than that for which the vessel is destined, says art. 7, the charter-party shall subsist entire. And Pothier (tom. 2, page 403): The oc currence of a war does not discharge the parties from their respective obligations.' So Valin: The captain cannot claim any augmentation of freight.' Nevertheless, an arrêt of the council of 20th May, 1744, in the case of vessels fitted out for the cod-fishery on the Banks of Newfoundland, not being able to proceed on their voyage, in consequence of a declaration of war against England, fully released and discharged the owners, captains, seamen, and others, from all their obligations on both sides. At this time there was no interdiction of commerce with the places of destination of our French fishing vessels. Nor was it one of the cases specially provided for by the Ordinance. Apparent danger is not a reason with the Ordinance for annulling the contract. War is in the place of rocks and storms. I think then, that this arrêt, dictated by a spirit of equity, and by reasons of state, is not to be drawn into a precedent, nor still less considered as a general law."

EMERIGON ULTIMATELY PREVAILS.

375

This may be a very just reply by Emerigon to Valin and Pothier, but it is hardly a commentary upon the cited article 11th, wherein it is supposed that the duty to tranship is absolutely imposed upon the master of a disabled ship.

To whatever article, however, these differences among the French jurists may really apply, it is satisfactory to know that they have not been unattended with benefit to jurisprudence and the cause of sound learning and just interpretation; for the conflict of minds, well matched, cannot fail to elicit and elucidate simple or complex truths.

Although Valin may have advanced one opinion, Pothier held to another, and both come in contact and conflict with Emerigon, still that disagreement among them has ceased to be, at the present time, embarrassing either to courts or counsel; the law in this behalf having become, by lapse of time, gradually and firmly es tablished; and its professors and administrators having wisely embraced and adopted the early, but better opinion and interpretation of Emerigon.

When, therefore, by any disability, a ship is incapable of proceeding upon and completing her voyage, it is the master's duty to forward cargo by another ship procured by him for the purpose; as it would be a breach or dereliction of duty for him to omit so to do. And this is the doctrine to which Emerigon early gave his adhesion, and from which Valin and Pothier are said to have early dissented.

The master who is driven into an intermediate port by stress of weather, with his vessel unable to proceed, is bound to repair his vessel in convenient time, or procure another vessel to convey the goods on toward their destination. 2 McLean, 422, supra.

376

PRO RATA FREIGHT DUE ON DELIVERY;

And if a ship be unable to reach her port of destination, and the owner of the cargo shall receive it at an intermediate port, freight pro ratú itineris is recoverable. And where the owner of the cargo is the cause why it is not transported to the port designated, full freight may be demanded.

But a permanent embargo would excuse a master from the performance of his contract. If the obstruction be temporary, it suspends it. Ibid.

Where a voyage is broken up, after its commencement, by an interdiction of commerce with the port of destination, or by accident, or by superior force, no freight is payable. Yet if, at an intermediate port, there be a voluntary acceptance of the cargo, freight pro ratú is due. The Saratoga, supra.

If the cargo shipped is not carried to its place of destination, no freight can be demanded. If voluntarily accepted by the owner or his agent, at any other port, freight pro rata is due; but if it be received by compulsion, and the master or factor, acting for the benefit of all concerned, shall receive the proceeds thereof, freight is neither earned nor due. Hurtin v. Union Insurance Co., 1 Nash. 530.

It seems, also, that a shipper has a right, by the maritime law, to examine the goods, after unlivery, in order to ascertain whether they are damaged or not, before he makes himself liable, at all events, for the freight.

A lien on the cargo for freight is recognized by the common law, and maritime law; but it may be displaced by particular circumstances, which denote a clear and determinate abandonment. Ibid.

And it seems that where freight is paid in advance, and the voyage is not performed, the ship-owner cannot,