on A. for the difference, which he sends to his agent with a bill Miscellaneous cases on freight. of lading drawn in blank; and desiring the agent, in case of A.'s refusal to accept the bills, to indorse the bill of lading to C. A. refuses to accept the bills, and the bill of lading is accordingly indorsed to C. The ship arrives, and C. demands the cargo as indorsee of the bill of lading. The captain however refuses; and delivers them to A., who deposits them with D., as his warehouseman. D. then receives notice from B. to hold the goods for B., as his property, in consequence of which D. refuses to deliver. them to A. In trover by A. against D., the Court of Common Pleas decided that A. having rested his claim on the supposition that the property had vested in him, could not, if he failed in that defence, set up his lien on the goods for freight. (a) The owner cannot maintain assumpsit for freight, where there is a contract under seal for the payment of it between the master, as such, and the freighter. (b) But a ship-captain may sue on an implied assumpsit for freight earned by his vessel. (c)

LXXV. In declaring on a contract "for the payment of money. due for the freight and carriage of goods on delivery of the bill of lading," it is necessary, by averments, to shew that freight has become due, either from the voyage having been performed, or from a special stipulation to pay it before, or upon the loading of the goods. (d) A plea in answer to a demand for freight, that the vessel was unserviceable for want of repairs (which the owner had covenanted to make,) must distinctly specify that it was occasioned through the owner's neglect. (e) An agreement that in consideration that A. would take on board his ship B.'s goods, for the purpose of conveyance, B. would pay a certain sum on A.'s delivering to him the bills of lading is a valid contract; and the price of the carriage of the goods is recoverable immediately on the loading of them, whether the voyage be performed or not. (f) The owners, having stipulated for the freight by an express contract, cannot be charged for it by bills of lading afterwards signed by the master. (g) There is no implied exception, in a covenant to pay freight, against payment during the time of making re

(a) Ogle v. Atkinson, 1 Mars. 323, and 5 Taunt. 759.

(b) Schack v. Anthony, 1 M. and S. 573, and see ante, Chapter on Charter-parties.

(e) Brouncker v. Scott, 4 Taunt. 1. (4) Blakey v. Dixon, 2 B. and P.

321.

(e) Havelock v. Geddes, 10 East. 555.

(ƒ) Andrew v. Moorhouse, 1 Mars. 122, and 5 Taunt. 435.

(g) Hunter v. Prinsep, 10 East. 378.

cases on freight.

[PART III. Miscellaneous pairs, which the owner has stipulated to make, unless rendered necessary through his default. (a) The freighter covenanted to pay so much for extra men, part immediately, but not the residue till the ship's discharge, or return from her voyage: held, that the ship's being burnt was a discharge within the clause. (b) A freighter who has the option to load wholly with cotton at a higher rate, or partly with rice at a lower rate, and partly with cotton; after electing to load with cotton, and failing to furnish a complete cargo, is bound to pay the higher freight for the whole ship. (c) A pledge by the owner (or part-owner) of the bills of lading, by which the goods are deliverable on payment of freight, who is, likewise, owner of the vessel, is a pledge of the freight. (d) An order in council, permitting certain contraband goods to be landed, has not the effect of legalizing the voyage; and, therefore, does not entitle the master to freight. (e) And where a transaction is absolutely illegal, as being a shipment in violation of the navigation act, the master cannot recover the freight, though the defendants, by receiving the goods, have waived all objections to the contrary. (f) If the master waves his lien for freight by parting with the possession, he must resort for payment to the original consignor or consignee, or part indorsee of the bill of lading, who takes the goods by virtue of it. (g) And a clause in a bill of lading, acknowledging that freight has been paid at the port of lading, or that freight is to be paid there, will not subject the shipper to the payment of freight, if the vessel be lost on the voyage. (h) In an action for freight, damage done to the goods by bad stowage cannot be given in evidence, either as a complete defence, or in mitigation of damages. (i)

LXXVI. We have already shewn, that where by a charter-party a ship was described to be of the burthen of two hundred and sixty-one tons, and the freighter covenanted to load a full and complete cargo, the Court of K. B. decided, that the loading of goods, equal in number of tons to the tonnage, described in the charter-party, was not a performance of this covenant: but that

the freighter was bound to put on board as much goods as the ship Miscellaneous cases on freight. was capable of carrying with safety. (a) And where an action is brought for not procuring a cargo, consisting of various articles to be carried at different rates of freight, the proper measure of damages is to estimate the freight by means of an average; and the freighter cannot, in calculating the amount of dead freight, insist upon the specific burthen of the ship, as stated in the charter-party, unless the misrepresentation has been fraudulent. (b) But where a ship was chartered on a particular voyage, for a gross sum by way of freight, and the captain signed bills of lading for the cargo, (which was the property of, and consigned to, a third person,) specifying a rate of freight amounting to a less sum than that mentioned in the charter-party, Lord Ellenborough held, that the ship-owner had no lien on the cargo beyond the freight specified in the bills of lading. (c)

LXXVII. Lien is a right which must be derived from law or contract, though the latter is more an agreement for a pledge, The question whether a tradesman has a general or particular lien is decided on the same grounds at law as in equity, and in the same way. There are some liens which exist only in equity: but the lien for freight is not one of them. A clause in a charterparty, binds the owners, ship, appurtenances, freight, and goods, &c. to be laden on board, in a penal sum for the due performance of the articles, &c. of the charter-party. Whatever construction and effect such a clause might have in other countries, it having been decided in the Court of King's Bench as inoperative to give the ship-owners a lien, the Court of Equity held they were not bound to find an equitable effect for a clause, merely because the construction which a court of law had put upon it would leave it inoperative. (d)

(a) Hunter v. Fry, 2 B. and A. 421. and ante, Chapter on Freight.

(b) Thomas v. Clarke, 2 Stark. 450. See Gibbon v. Mendez, 2 B, and A. 17. and ante.

(c) Mitchell v. Scaife, 4 Campb.

298.

(d) Gladstone v. Birley, 2 Mer. 401. See this case, ante.

482

CHAPTER VII.

OF GENERAL AVERAGE.

Definition of general average.

GENERAL average may be defined to be, an assessment for a loss, or an expense which the loss creates, towards which both ship and cargo are bound to contribute pro ratá, because it has been incurred for the general benefit and preservation of the whole. Simple or particular average is, damage incurred by or for one part of the concern, and which that concern alone must bear.

I. General average, therefore, is founded upon the principle of the equity of the cases to which it is applied. Much is not to be met with in the law books on this subject. It is, however, an obvious principle of natural justice, that where two or more parties are concerned in a common sea-risk, and one of them makes a sacrifice for the general safety, the loss shall be assessed upon all in proportion to the share of each in the venture; and the greater sacrifice of the first shall be compensated by the contribution of the others. It seems totally unnecessary to go to the Rhodian or Roman law for what common sense and common justice must suggest to every one; and, though it be pleasing to learned curiosity to perceive the customs of our own times confirmed by such ancient precedents, we should be satisfied with finding the analogy, without grounding ourselves upon it as the reason. General average, in a word, is the common law and justice of partnership; and, defined according to its nature, is a compensation from the common stock of a sea venture, in the several proportions of the partners in it, for the special loss or sacrifice made by one or more for the common good. In the case of the Copenhagen, Lord Stowell, in delivering his judgment, says :-General average is for a loss incurred, to which the whole concern is bound to contribute pro ratâ, because it was undergone for the general benefit and preservation of the whole. Simple or particular average is not a very accurate expression; for it means damage incurred by or for one part of the concern, which that part must

rage.

bear alone; so that, in fact, it is no average at all: but still the Definition of expression is sufficiently understood, and received into familiar general aveuse. The loss of an anchor or cable, the starting of a plank, are matters of simple or particular average, for which the ship alone is liable. Should cargo of wine turn sour on the voyage, it would be a matter of simple average, which the goods alone must bear; and there might be a simple average for which each would be severally liable under a misfortune happening to both ship and cargo at the same time, and from a common cause; as if a water spout should fall on a cargo of sugars, and a plank from the same violence should start at the same time. General average is that loss to which contribution must be made by both ship and cargo; the loss, or expense which the loss creates, being incurred for the common benefit of both. (a)

II. Three things, therefore, are here necessary to constitute any claim upon the ground of general average; first, that there should be a special sacrifice by one or more for the benefit of the whole; secondly, that it should be for the purpose, and with the intent (causa et mente) of the preservation of the common concern: thirdly, that the common concern should be benefited by the partial sacrifice.

III. The special sacrifice, it would appear, must be something done and not suffered: there must be the will and agency of the party making it; his actual or presumed consent. Thus, in jettison, or, to employ the more ancient term of the lex Rhodia, the jactus mercium, the owner himself of any part of the cargo might throw it overboard, or the captain or mariners might do it for him. But, in order to make the cargo contribute, this sacrifice must have been made, as well for the sake of the cargo as for the ship, or rather for the sake of the cargo through that of the ship. If merely for the sake of the ship, nothing has been done for the cargo; and, therefore, nothing can be claimed for it. It is the duty of the master to take care of the ship, whether there be a cargo or not; and therefore all sea-damage, injury by tempest, loss of masts or sails, are not losses suffered for the sake of the cargo, and are not to be repaired by its contribution. If a ship strike on a rock, or be stranded; in the first place, it is something suffered and not done; and, secondly, it is nothing either suffered or done for the sake of the cargo. No claim, therefore, to general average lies here. But if a mast be then cut down, or any part of the cargo thrown overboard in order to save the rest from perish

(a) Robinson, 293.