separate rates of freight were to be paid. He supplied the ship with as much tallow and hides as she chose to take, but refused to provide any copper. Held, that he was not bound to do so, though, for want of it, the ship was obliged to keep in her ballast, and did not earn so much freight as she otherwise would have done (e).

3. Agreement to proceed to the East Indies, and there load a full cargo, the fore cabin to be filled with light goods; 100 tons of rice or sugar to be shipped previous to any other part of the loading, to ballast the vessel. Held, that the owner must furnish what further ballast was necessary, and that the freighter, after shipping the 100 tons of rice or sugar, could complete the cargo with light goods (f).

§ 74.

when due.

Freight means the price to be paid for the carriage of Freight, the goods to their destination (g), and not the price to be what, and paid for receiving goods to be carried, or for carrying passengers (g). Therefore, if a merchant stipulate to pay a sum of money to a shipowner for taking goods on board, such sum will not be freight stricto sensu (h).

Consequently the freight will not become due if the carriage of the goods be not completed (i); even if paid, it can be recovered in cases where the voyage is never completed, unless it were payable in advance (k).

The shipowner will not forfeit his freight if the voyage is merely temporarily interrupted through no fault of his and afterwards completed (1), as, e. g., in consequence of a capture by an enemy and a recapture (m), or by icebergs or pirates. But he will, if the ship be abandoned at sea (n).

(e) Moorson v. Page, 4 Camp. 103. (f) Irving v. Clegg, 1 Bing. N. C. 53.

(g) Lewis v. Marshall, 7 M. & G. 729; see "Cases" (1) at end of this §.

(h) Blakey v. Dixon, 2 B. & P. 321; Abbott, pt. 3, c. 7; Byrne v. Schiller, L. R., 6 Exch. 20, 319.

(i) Mashiter v. Buller, 1 Camp. 84; Duthie v. Hilton, L. R., 4 C. P. 138; The Cargo ex Argos, L. R., 5 P. C. 134; see "Cases" (2) and

(3) at end of this §.

(k) Frayes v. Worms, 19 C. B., N. S. 159; Byrne v. Schiller, L. R., 6 Ex. 20, 319.

(7) Sometimes if not; The Teutonia, L. R., 4 P. C. 171.

(m) The Race Horse, 3 Rob. 101; see "Cases" (4) at end of this §. Beale v. Thompson, 4 East, 546; The Martha, 3 Rob. 106.

(n) The Kathleen, L. R., 4 A. & E. 269.

Where under the charter-party a lump sum freight is payable on delivery of the cargo, and part is lost on the voyage without the shipowner's fault, the lump freight will be payable, without deduction, on the remainder of the cargo being delivered (o).

If the ship be prevented from sailing, her owners can, in the absence of an express agreement, claim no remuneration for the work already executed, such as for stowing the goods on board. For the voyage does not commence till the ship has broken ground (p).

Payments made in advance on account of freight cannot be recovered, even though the ship be lost before the completion of the voyage (9).

CASES.

1. A shipbroker agreed to supply "a full cargo, the rates of freight to average 40s. a ton." The average rate of freight for the goods put on board only amounted to 32s. per ton. The shipbroker, however, shipped steerage passengers, whose passage money, when added to the freight, brought the average up to 40s. Held, that the shipbroker had not thereby performed his contract, cargo and freight being terms applicable to goods only (r).

2. The plaintiff agreed to carry the defendant's goods on board his ship from London to Lisbon, the freight to be paid on the shipment of the goods. The ship sailed, but was lost in the Downs. Held, plaintiff had no claim to the freight, though made payable on shipment, the voyage not having been performed (8).

3. Cement was shipped under a bill of lading which stipulated that freight should be paid "within three days after ship's arrival, and before delivery of any portion of the goods." The ship arrived safely at her destination, but was within three days scuttled, having caught fire. When raised, the cement was found useless. Held, that the shipowners were not entitled to freight (t).

(0) Merchant Shipping Company v. Armitage, L. R., 9 Q. B. 99; see "Cases" (5) at end of this §; Robinson v. Knights, L. R., 8 C. P. 465.

(p) Curling v. Long, 1 B. & P. 634; see "Cases" (6) at end of this §.

(1) Byrne v. Schiller, L. R., 6 Ex. 20, 319.

(r) Lewis v. Marshall, 7 M. & G. 729.

84.

(s) Mashiter v. Buller, 1 Camp.

(t) Duthie v. Hilton, L. R., 4 C. P. 138.

4. A British ship, freighted in ballast from Liverpool to Lisbon to fetch a cargo of fruit, was on her return voyage captured by a French privateer; she was subsequently recaptured and brought into Falmouth. Held, that the whole freight was due (u).

5. Under a charterparty the plaintiff's ship was to load a full and complete cargo at C., and proceed to London and discharge there; fire and other dangers of the sea excepted; a lump sum of 5,000l. to be paid on entire discharge and right delivery of the cargo. During the voyage part of the cargo was burnt, without any default of the master or crew. The remainder was delivered in London. Held, the plaintiff was entitled to the 5,000l. (x).

6. A ship bound for London, after taking in her cargo, but before breaking ground, was cut out of her port of lading in Jamaica by a French privateer, but afterwards recaptured and carried into another port in Jamaica. There the cargo was sold by the order of the Court of Admiralty for the benefit of the freighters. Held, that the owners of the ship were not entitled to any part of the freight (y).

owner.

§ 75.

The amount of freight for goods sent in a general ship Amount of depends on the agreement between the merchant and the freight. Where no such agreement has been entered into, it will depend on the value of the service performed, which value has to be estimated in accordance with the usage of trade.

Where freight is to be paid for the lading of cattle, it will be due, even though the cattle die during the voyage. But if the freight is to be paid for transporting them, it will not be due, in respect of the cattle which die during the voyage (z).

If a gross sum is to be paid for the whole or part of a ship under a charterparty, it will be due, even though a complete lading is not provided by the merchant, or though part of the goods be lost by excepted perils (a), e. g., by fire or perils of the sea.

(u) The Race Horse, 3 Rob. A. R. 101.

(x) The Merchant Shipping Company v. Armitage, L. R., 9 Q. B. 99. (y) Curling v. Long, 1 B. & P. 634. (z) Molloy, De Jure Maritimo,

bk. ii. c. iv. s. 8.

(a) Robinson v. Knights, L. R., 8 C. P. 465; Merchant Shipping Co. v. Armitage, L. R., 9 Q. B. 99; The Norway, 3 Moore, P. C., N. S. 245.

If the payment is stipulated to be at the rate of so much per ton, it must be calculated on the number of tons the ship, or the part thereof chartered, contains (b). If at so much per quarter or per ton of cubic feet of the goods, it must be calculated on the quantity of goods carried, not on the quantity discharged (c). Where, however, the payment is stipulated to be at the rate of so much per quarter or per ton delivered, it must be calculated on the quantity of goods discharged (d); except in cases where the quantity is increased or diminished by some accidental cause (e).

Where a ship is chartered to carry a cargo of enumerated articles at rates of freight specified for each article, and the charterer does not provide them, freight must be paid on average quantities of all the articles, whether the ship return empty or laden with a cargo of different articles (ƒ).

If the master of the ship improperly decline to take all the goods stipulated to be carried, he can nevertheless claim payment for the part he has carried, provided payment was agreed to be "per ton" or "per cask or bale" (g). But the freighter will, of course, have an action for damages for short delivery. So the master can claim payment for the goods actually carried, even if he does not sail according to agreement with the first wind or convoy (h), or if he deviates (i); the merchant, however, having a right of setoff for damages (k).

(b) Hunter v. Fry, 2 B. & Ald. 421; see "Cases" (3) at end of this §. (c) Gibson v. Sturge, 10 Exch. 622; Buckle v. Knoop, L. R., 2 Exch. 125, 333; see 99 "Cases (1) at end of this §; The Skandinav, 51 L. J., P. 93.

(d) Coulthurst v. Sweet, L. R., 1 C. P. 649; see "Cases" (2) at end of this §.

(e) Buckle v. Knoop, L. R., 2 Ex. 333; see "Cases" (1) at end of this; Spaight v. Farnworth, 5 Q. B. D. 115; 49 L. J., Q. B.

346; 42 L. T. 296; 28 W. R. 508. (f) Capper v. Forster, 3 Bing. N. C. 938.

(g) Ritchie v. Atkinson, 10 East, 295; see "Cases" (4) at end of this §.

(h) Constable v. Cloberie, Palm. 397; Hall v. Cazenove, 4 East, 477.

(i) Bornmann v. Tooke, Camp. 376; see "Cases" (5) at end of this §; and Davidson v. Gwynne, 12 East, 381.

(k) Davidson v. Gwynne, 12 East, 381; MacAndrew v. Chapple, L. R.,

If part only of the goods were delivered, in consequence of the default of the consignees, or the restraints of princes, then freight will be due on such as are delivered, if they were consigned by a general ship, or if the vessel were chartered for freight to be paid according to the quantity of the goods (). It is a vexata quæstio whether freight is payable in such a case, if the vessel were chartered at a specific price for the voyage (m).

The shipowner takes the risk of the duration of the voyage, and he can only claim the freight stipulated for, whatever its length. But the merchant will take the risk if he agreed to pay so much per month or other aliquot part of the voyage; even in the event of any unavoidable delay, e. g., delay necessary to repair the vessel (»).

CASES.

1. By charterparty it was agreed that the plaintiff's ship should load at Bombay a full cargo of cotton, and deliver it at Liverpool on being paid freight at "75s. per ton of fifty cubic feet delivered." The cargo was packed at Bombay, as is usual, in compressed bales, and expanded greatly on being unloaded at Liverpool. Held, that the freight was payable on the measurement cf the goods at Bombay (0).

2. Green bark was shipped at Penang under a bill of lading, describing it as of a certain weight, and making it deliverable in London on freight at 31. per ton "nett weight delivered" being paid. The freight was held payable, not on the weight mentioned in the bill of lading, but on the weight actually delivered (p).

3. By a charterparty the freighter covenanted to load a ship of 261 tons with a full and complete cargo. Held, that the freighter was bound to put on board as much goods as the ship could carry with safety, and that loading goods corresponding to the ship's

1 C. P. 643; 38 & 39 Vict. c. 77; Ord. XIX. r. 3.

(1) Christy v. Row, 1 Taunt. 300. (m) Smith's Merc. Law, p. 320, 9th edit.

(n) Havelock v. Geddes, 10 East, 555; Ripley v. Scaife, 5 B. & C.

167; see "Cases" (6) at end of this §.

(0) Buckle v. Knoop, L. R., 2 Exch. 125, 333.

(p) Coulthurst v. Sweet, L. R., C. P. 649.

1