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On sailing the ship must proceed to the port to which she is destined without delaying unnecessarily, and without deviating (); for if she deviates and is afterwards lost, the master and owners will be liable to the shipper, though the loss occur through the act of God or the king's enemies (i). However, a deviation with a view of saving life is justifiable, though a deviation merely to save property is not (k).
Damages in consequence of a fall in the market price of the goods between the date fixed for delivery and when they were actually delivered, are not recoverable in an action against the shipowner for unreasonable delay ().
CASES. 1. The defendant by a charterparty dated 20th October, 1832, agreed to proceed in ballast from Portsmouth to St. Michael's, and bring back a cargo of fruit direct to London. If the vessel did not reach St. Michael's by the 31st January, 1833, the charterer' was empowered to rescind the charterparty. Held, that the defendant was bound to proceed at once to St. Michael's, and could not make an intermediate voyage for his own benefit, though he arrived at St. Michael's within the stipulated time (m).
2. The plaintiff put on board the defendant's barge lime to be carried from the Medway to London. The master of the barge deviated unnecessarily from the usual course, and during the deviation the lime was wetted by a storm, and, the barge being set on fire thereby, the whole was lost. Held, that the defendant was liable for the value of the lime (n).
3. The plaintiffs chartered a vessel, the O., to carry a cargo of wheat from Cronstadt to the Mediterranean, the usual perils of the sea excepted. During the voyage she sighted a vessel in distress, which she agreed, in consideration of 1,0001., to tow into the Texel, which was out of her direct course. Whilst doing so, the 0. having stranded was with her cargo totally lost. The jury found that the
() The Express, L. R., 3 A. & L. T. 840; 28 W. R. 691 (C. A.); E. 597; The Teutonia, L. R., See “ Cases” (3) at end of this s. P. C. 171.
(1) The Parana, 2 P. D. 118; (i) Parker v. James, 4 Camp. 112; Brit. Columbia Co. v. Nettleship, Davis v. Garrett, 6 Bing. 716. Seo L. R., 3 C. P. 499. “ Cases" (2) at end of this g.
(m) M'Andrew v. Adams, 1 Bing. (1) Scaramanga v. Stamp, 5 C. P. N. C. 29. D. 295; 49 L. J., C. P. 674; 42 (n) Daris v. Garrett, 6 Bing. 716.
deviation to the Texel was not reasonably necessary to save life, though it was to save the ship and cargo. Held, that the deviation was unjustifiable, and that therefore the plaintiffs could recover the value of the cargo from the owners of the 0. (o).
$ 64. It is the duty of the master to do everything in his power to convey the goods in safety to their destination. A contract, therefore, made by him with this object in view [e.g. for repairs] will bind his owners (p). Further, he may, to raise money for repairs, mortgage the cargo, or even sell a part of it, if the remainder can in no other way be saved (m). If no necessity existed for repairing, the master alone will be liable and not the owners (r).
Where, through some unexpected cause, the cargo is damaged, or cannot be conveyed to its destination in the original vessel, the master should tranship it for the place of its destination (s); or, if that be impracticable, he should return it, or deposit it in some place of safety. In all cases he should consult the owner of the goods, if possible. He may, however, in certain cases sell or mortgage them without the owner's authority; for example, when they are of a perishable nature (t), provided that he may only do so as a last resource. For if the master sell without absolute necessity, both he and his owners and the purchaser of the goods will be responsible to the merchant, and the sale will be void (u).
(6) Scaramanga v. Stamp, 5 C. (5) Shipton y. Thornton, 9 A. & E. P. D. 295; 49 L. J., C. P. 674 ; 314 ; The Cargo ex The Hamburg, 42 L. T. 840; 28 W. R. 691 2 Moo. P. C., N. S. 289; Notara v. (C. A.).
Henderson, L. R., 7 Q. B. 225. (P) Cary v. White, 5 Bro. P. C. (t) Pleirboom v. Chapman, 13 325 ; Arthur v. Barton, 6 M. & W. M. & W. 230; Roux v. Salvador, 138; Johns v. Simons, 2 Q. B. 3 Bing. N. C. 266 ; Duncan v. Ben424; The Great Eastern, L. R., 2 son, 3 Ex. 644; Acatos v. Burns, A. & E. 88.
3 Ex. D. 282. (2) The Gratitudine, 3 Rob. 240; (u) Acatos v. Burns, 3 Ex. D. The Bonaparte, 3 W. Rob. 298; 282 ; The Atlantic Ins. Co. v. Huth, and see infra and Ch. XII. p. 134. 16 Ch. D. 474 (C. A.); The Cargo ex
(v) Thacker v. Moates, 1 M. & The Galam, 33 L. J., Ad. 97; The Rob. 79.
Australasian Steam Nar. Co. y.
If the master mortgage the cargo, the shipowner must indemnify the merchant (w).
If he sell the cargo, and the ship afterwards reaches her destination, the shipowner must pay the merchant the sum which the goods would have realized at their destination; unless the merchant elect, as he has a perfect right to do, to take the amount they really sold for (y). In the latter case he may deduct it from the freight (z).
The master can in extreme cases, when the voyage can 2. To sell no longer be prosecuted, sell the ship, for instance,
when ship, when it is impossible to repair the ship. Mere difficulty in obtaining the necessary materials or money for repairs will not entitle the master to sell instead of repairing. But, on the other hand, the necessity which the law contemplates is not the absolute impossibility of getting the vessel repaired. Therefore, if the ship cannot pursue her voyage without repairs, which can only be executed at such a cost as no prudent man would incur, that will constitute a case of necessity and justify the master in selling (a).
Where a sale of the ship by the master is not justifiable, the vendee will acquire no title to the ship (6), unless it be sold by order of a foreign court of competent jurisdiction in a proceeding in rem (c), even though the court incorrectly interpreted the English law (d).
Morse, L. R., 4 P. C. 222; Freeman v. East India Co., 5 B. & Ald. 617; see “Cases” (1) at end of this s; Morris v. Robinson, 3 B. & C. 196.
(2) Duncan v. Benson, 1 Exch. 537; Benson v. Duncan, 3 Exch. 644 ; see “Cases" (2) at end of this ș ; and see Chap. XII. p. 134.
(y) Hallett v. Wigram, 9 C. B. 580 ; Atkinson v. Stephens, 7 Exch. 567.
(2) Campbell v. Thompson, 1 Stark. 490; The Salacia, Lush. 578; Hopper v. Burness, 1 C. P. D. 137 ;
Acatos v. Burns, 3 Ex. D. 282.
(a) The Australia, 13 Moo. P. C. 132.
() Cambridge v. Anderton, 2 B. & C. 691; Alcock v. Royal Exch. Co., 13 Q. B. 292 ; Knight v. Faith, 15 Q. B. 649 ; Somes v. Sugrue, 4 C. & P. 276; The Fanny and Elmira, Edward's Reports, 117; Ireland v. Thomson, 4 C. B. 149.
(c) Cammell v. Sewell, 5 H. & N. 728.
(d) Castrique v. Imrie, L. R., 4 H. of L. 414.
Bill of lading conclusive, when.
CASES. 1. During a voyage from Calcutta to London, the ship was wrecked off the Cape of Good Hope. Some indigo, part of the cargo, was saved, and sold at the Cape by auction, by order of the captain, acting bona fide for the benefit of all persons interested. The sale was not absolutely necessary. Held, that the purchaser acquired no title; and that the indigo having been sent to England, the original owners could recover its value from the purchaser (e).
2. The master of a ship damaged by the perils of the seas, hypothecated abroad, to raise money for necessary repairs, by one bottomry bond, the ship, freight and cargo. The ship and freight realised less than the sum advanced. The plaintiff, who owned part of the cargo, had to contribute towards the deficiency and towards the cost of an action on the bond. Held, that the plaintiff could sue the owner of the ship for what he had contributed (f).
$ 65. Every bill of lading in the hands of a consignee or indorsee for value, representing goods to have been shipped on board a vessel, is, in the absence of fraud on the part of the shipper or holder of the bill of lading, or of any person under whom he claims (), conclusive evidence of such shipment as against the master or other person signing it.
This rule will apply even though such goods or part of them have not been shipped; unless the holder of the bill of lading had actual notice at the time of receiving the same that the goods had not been shipped (1).
However, the bill of lading will not operate as an estoppel as between the consignor or consignee of the goods and the owner of the vessel. Therefore, the shipowner may prove that the goods, or some of the goods, specified in the bill of lading were never shipped (i).
(e) Freeman v. East India Co., 5 B. & Ald. 617.
(5) Benson v. Duncan, 3 Exch. 644.
(9) Valiere v. Boyland, L. R., 1 C. P. 382.
(1) 18 & 19 Vict. c. 111, s. 3; Droun v. Powell Coal Co., L. R., 15 C. P. 562; see “Cases” (3) at end of this $; Meyer v. Dresser, 16 C. B., N. S. 646; 33 L. J., C. P. 289.
(i) Bates v. Todd, i M. & Rob.
If the bill of lading show on the face of it that the freight or any other charges have already been paid, the owner or master will be estopped from claiming them as against an assignee of the bill (k).
On the arrival of the vessel at its destination, the master Delivery of must report it (l); show his papers to the proper officers (m), sirgo to con1
signee. and deliver the cargo to the consignee specified in the bill of lading, or to the indorsee of such, on the freight and any other charges—e.g. primage and average—being paid
No goods, except bullion, diamonds, and fish of British taking and in British ships, may be landed without report and entry. The goods must be unshipped in the presence of a custom house officer, and at the proper time and place, or they will be liable to forfeiture (0).
The master may not detain the goods of one person as security for the charges due on the goods of another person ; but he may detain any part of the goods consigned to the same party for the charges due on the whole (p).
If freight for the whole voyage be tendered at an intermediate port, where the ship is detained by no fault of the merchant, and the ship cannot possibly complete her voyage in a reasonable time, the master cannot refuse to unload the cargo (9).
CASES. 1. By the terms of a bill of lading freight was payable
onethird in cash on arrival at B., and two-thirds on right delivery of 106; McLean v. Fleming, L. R., 2 (1) Within twenty-four hours H. L. Sc. Cas. 128; Grant v. Nor- after arrival, when a ship arrives way, 10 C. B. 665 ; Brown v. Powell at a port in the United Kingdom Duffryn S. C. Co., L. R., 10 C. P. (39 & 40 Vict. c. 36, s. 50). 562; see “ Cases" (3) at end of (m) 17 & 18 Vict. c. 104, ss. 161,
273. (k) Howard v. Tucker, 1 B. & Ad. (n) Paynter v. James, L. R., 2 C.P. 712 ; see “ Cases" (2) at end of 348; see“Cases”' (1) at end of this $. this $ ; The Merc. & Exchange Bank (0) 39 & 40 Vict. c. 36, s. 47. v. Gladstone, L. R., 3 Exch. 233; (p) Abbott, pt. iv. c. vi, s. 11. Tamvaco v. Simpson, L. R., 1 C. P. (9) The Patria, L. R., 3 A. & E. 363.