CH. 33. 10 East 526, Liddard v. Lopes. Mass. Sup. Essex Nov. 121; 7 T. R. 381; Molloy 371; 2 Burr. 882, 883; Abbot 233, 244, 258; 2 Johns. R. 323, 327. Freight, Insurance on, see Ch. 40, a. 16, and charter-party for, Ch. 103. 19. The plt., by agreement, let his ship to the defts., to freight on a voyage from Shields to Lisbon. It was prevented by the enemy's taking possession of Lisbon, after the ship entered on the voyage. Held, no freight due pro ratá. Freighters refused to receive the goods at Portsmouth. ART. 2. Several further cases, English and American. Jud. Court, 1. The contract was for a voyage from Newburyport to one or more of the West India islands, and back to Newburyport, at £22. 10s. freight a month, for each and every month from a certain date, to her return to Newburyport. She discharged her cargo in the West Indies, and was lost on her return home. Searle & Ty. ler. Mass. Colony laws, A. D. 1672. 1 H. Bl. 117, v. Vernon. § 2. The court allowed freight to the time of her loss on the special words in the contract, each and every month. But otherwise had it been freight so much per month, from such date to her return; no freight could be allowed, because then it would have been one entire contract, and that performed but in part by the owner. But no interest was allowed. This latter part of this case differs in the wording from the 12th rule above. 3. Case decided. S shipped goods with B, to be delivered to R, beyond sea, he paying freight. B, on his arrival at the port, tendered the goods to R, and he refused to receive them, or pay the freight. B left the goods in safe hands, by good advice. It was decided that B could not recover the freight of S, but he ought to have taken it out of the goods, as the law gave him a lien upon them &c. 4. Freight does not belong to the mortgagee of a ship, till 120, Jackson he has taken possession, nor till this is done is he liable for necessaries provided for her. As where, February 6, 1787, Palmer gave a bond of £1500 to the deft., and an absolute bill of sale of the ship repaired, and an assignment of certain goods. In this, it was recited that the bill of sale &c., were absolute, and to secure the £1500, and that the papers were so given to enable the deft. to sell the ship and goods, to raise money to pay the said £1500 so lent, and the interest. Also in the assignment, there was a covenant from the deft. to Palmer, that in case he paid the £1500 and interest before the ship and goods should be so sold, then the deft. should reconvey the ship and goods; but nothing to prevent the deft. selling the ship and goods before repaid. The court decided, that the deft. was only mortgagee, not CH. 33. Sanford.--1 Bac. Abr. 29. liable for provisions, or entitled to freight, till he got possession; nor liable for repairs or necessaries. 8 Johns. R. 159. Art. 2. 5. To make part owners liable on account of freight, for the neglect of their master, they must be joined in the action. 2 Salk. 440, As where several part owners placed a master in their ship for Boson r. wages, which ship usually transported goods for hire, and J. S. delivered goods to the master, to be carried for hire, without any contract with the owners, and the goods were spoiled by the master's neglect. Held, the owners were liable in respect of their freight, and as employing the master. But then all the owners are liable as on contract. Either master or owners may sue for freight. As to joining them, see Ch. 42, a. 3. nings, cited 3 § 6. Freight pro ratâ itineris. In an action on a charter- 7 T. R. 381, party, the deft. covenanted to pay so much for freight, for Cook v. Jen "goods delivered at A." Held, freight cannot be recovered Com. D. 247. pro rata itineris, if the ship be wrecked at B, before her arrival at A, though the deft. accept the goods at B. But it is added, perhaps assumpsit on a quantum meruit, might have been maintained. Assumpsit lies, 2 Johns. R. 323, Robinson v. Mar. Ins. Com. Lex Mer. Am. 190,Baillie v. Moudig 7. In this case it was held, that if after capture and condemnation, the sentence be reversed and the goods be restored, "freight pro rata itineris is due," and so seamen's wages in liani. proportion. Freight pro rata &c., see Abbot 335 to 360. ton. 8. Assumpsit for freight, of 72 hhds. of tobacco, from 1 East 507, Virginia to Liverpool. September 1799, the plt., master of Ward v. Felthe ship Friendship, a general freighting ship, took this tobacco on board at Norfolk. The vessel was consigned to Rathbone and Co. at Liverpool by her owners. Edward and Thomas Downing, of Philadelphia, put on board this tobacco, to be delivered at Liverpool to Mr. Downing, or to his assigns, he or they paying freight, 6 guineas a hhd. The bills of lading were not endorsed, except the memorandum, substituting Downing's name in lieu of Felton's, by consent of parties. The vessel arrived near to Liverpool, and took a pilot, but solely by bad weather was driven on shore, and was considerably injured, and was in further danger, when the plt. applied to Rathbone & Co., his consignees; they notified the several consignees of goods on board, to meet, and among others Felton, whose name remained legible on the bill of lading. They met, and the deft. remarked that Downing & Co. were his correspondents, and agreed to assist in saving the goods, if any were consigned to him. Soon after the meeting he received an invoice of this tobacco, and a letter from E. and T. Downing, inclosing a bill of lading, in which was Downing's name only. This letter stated the tobacco was consigned to E. Downing, who meant to proceed to Liverpool, and directed CH. 33. See 3 Bos & P. 479-5 See M'Carthy v. Abel, Sharp Gladstone, Ker v. Osborne. v. an insurance on it, at £40 a hhd., and it requested the deft. to see to the sale of this tobacco, if E. Downing did not arrive in season. This was the first transaction between the Downings and the deft. November 18, 1799, E. Downing not having. arrived, the deft. made an entry at the custom house of this tobacco, as was usual and legal. "In the Friendship, Virginia, G. Felton, 72 hhds., 105,881 lbs. tobacco, American produce, to be warehoused per November 19, 1797." This tobacco was landed, and lodged in the king's warehouse accordingly. But some part had been lost in the storm, and the rest so damaged, that only 30 hhds. were good or saved. December 3, after E. Downing arrived at Liverpool, the freight was demanded of the deft. The 30 serviceable hhds. were worth but £5 a hhd., without any allowance for their freight; so, much less than the freight. The court, on these facts, decided that the deft. was not liable to pay any part of the freight; for he acted for E. Downing, to whom the tobacco was consigned. The deft. made no contract to pay the freight. The plt. should have sued the shippers; and the plt. might have kept the goods till his lien was satisfied. A freighter agreed to pay £192, disbursements at the foreign port, and freight the voyage; the ship was lost in returning. Held, he could not recover back the £192, part of the hire, or in fact freight, for by the special contract, the charter-party, the master was entitled to retain all paid him, though he did not earn his return freight from Marenham to Liverpool. 4 Maul. & Sel. 37, 47, De Silvale v. Kendall, cotton 22 per pound freight. 4 East 34, 52, 9. Assumpsit, by an underwriter against the assured, for Thompson . freight received after an abandonment, in one of the Russian Rowcroft.- cases in 1800, 1801, voyage from Portsmouth to Riga. The ship-owner first insured his ship with A, and his freight with B, and being notified of an embargo at Riga, abandoned the ship to the underwriters thereon, and the freight to the underwriters on that, and received from each a total loss first engaging on each policy to assign to the insurers respectively, his interest in the ship and freight, and to account accordingly. Afterwards the ship was liberated and earned her freight; this was received by the assured, the deft. Held, he was liable, for he had received the freight from the shippers of the goods, and had expressly promised to pay it over to the underwriters on freight, who by the abandonment and payment of the loss of freight, had become entitled to it; and that without deducting the expenses of provisions, and wages, which before the abandoment were charges on the ship-owner, and after that on the underwriters on the ship, who stood in his place. And the plt., by the judge's order, filed in this case the following statement : "This action is brought by the plt. &c. (who was an underwriter for the sum of £150 on the freight of the ship called the Theseus, insured on a voyage at and from Riga to Portsmouth, on which policy the plt. has paid a total loss, and the deft. has since received the freight insured,) to recover the sum of £150, with interest thereon, from the deft." The underwriters on the ship claimed this freight. This case was decided solely on the specific agreement between the plt. and deft. The policy on the freight was after that on the ship, but before she was abandoned. It was urged also on the deft's. part, that this detention by Russia was a capture, and not an embargo, therefore that it put an end to the contract for freight. CH. 32. Art. 2. v. Barker, A. 1 D. & E. 10. Assumpsit. In this case the plt. contracted to carry 5 East 316, the deft., his family, and luggage, from Demerara to Flushing 324, Mulloy in Holland, they to have the exclusive use of the cabbin, for D. 1804.2400 guilders; and within four days sail of Flushing the ship was captured and carried into England, as a prize, and libelled, and the cargo condemned. The deft. and family were set at liberty, at Plymouth, and their luggage restored to them. The proceedings as to the vessel were pending. The court held, that however the question might be as to the plt's. right to recover passage money, on an implied assumpsit, pro ratâ itineris, if the ship were restored, yet, pending the process against her as prize, no such action could be maintained; for non constat, but that the ship might be condemned, and the freight be decreed to the captors. Passage money seemed to be viewed by the court as freight, "except for the purpose of lien." It this case it was observed that, by the common law, the plt. cannot recover on a contract not performed, or partly performed; but that by the marine law it was otherwise; therefore in Luke v. Lyde, where the contract was covenants in a charter-party, the same was not performed, but being partly performed the marine law allowed a recompense for that part, and the courts of law have allowed assumpsit to be engrafted upon that law, to recover such recompense for part performance in regard to freight, seamen's wages, &c. The benefit recovered for, makes part of the original contract, and this assampsit may be implied by the deft's. accepting what the plt. has done, in part performance, without requesting him to perform the residue, and thereby dispensing impliedly with his performing such residue, and without any fault or neglect of his. 182.-2 Burr. 1018. § 11. In this case the deft. bought of the consignee all the 6 East 622, tar on board a certain Swedish ship, under two bills of lading, Sodergren v. and by agreement between them, the consignee was to pay the Flight. freight. The deft. received from the master most of the tar, CH. 33. 7 East 24, 38, Sharp v. Gladstone. and the consignee failed, not having paid the master his freight. The court decided, that the ship and freight were salvage to the different underwriters, after deducting the expenses, each set was liable to pay, each being in the place of its assured, as follows, to wit: The underwriters on freight having paid as for a total loss, were entitled to the benefit of salvage, "and the net salvage is that which remains of the subject matter, after payment of the expenses of saving it." First, the charges paid at Liverpool £901. 15s., 5d. on ship and cargo were not to be paid by either set of underwriters. Second, the insurance on the ship can be no charge on the freight. Nor, third, can the diminution of the value of the ship and tackle by wear and tear on the voyage home, be a charge on freight or ship. Fourth, the expense of putting the cargo on board at Petersburg, was clearly for the benefit of the underwriters on freight, so a charge on them, and to be deduct ed. Fifth, the expenses at Petersburg and Elsineur, as port charges, were to be apportioned on ship and freight. So, sixth, wages and provisions of the master and crew £223. 6s. 11d. from the time they were liberated in Russia, till discharg ed in England, were to be so apportioned. So, seventh, their the |