a cargo for Europe and there sold, and there the supercargo Cн. 33. caused them to be credited with their respective proportions Art. 1. of the proceeds. The share of the owners was duly remitted to them with half the profits on the adventure of the shipper, who having directed a particular appropriation of his share, the same remained in a merchant's hands, by whose failure a loss accrued thereon. This was the shipper's loss, of which the ship owners were not liable to bear any part. fin v. Storer In this case also A hired one fourth of a vessel for a voyage 6 Mass. R. at a certain sum per month. In the voyage she was wrecked, 252, 257, Cof and the cargo was transported to the agreed port of delivery. Held, the owner shall receive the hire as if the voyage had been performed, deducting the expenses of transporting the goods from the wreck to this port; held also, A must pay his fourth part of this transportation from the wreck to the port of delivery held 3. A, the freighter, paid none of the expense of landing his goods at the place of wreck, (Eastham,) but this fell on the freight, but was considered as receiving his goods after there landed. In fact, as the owner of the vessel delivered A's goods at their destined port, (Biddeford,) A paid full freight. The expense by land from Eastham to Biddeford was deducted out of the whole freight; this expense he paid. 272. Further rules laid down by Lord Mansfield and the court. § 8. Eighth. If a freighted ship become accidentally disabled 2 Burr. 882, on her voyage, without the fault of the master, he has his option 890, Luke & al. v. Lyde.of two things, either to refit his vessel, if he can in convenient 1 W. Bl. 190. time, or to hire another to carry the goods to the port of de- -Abbot 194, livery. If the merchant disagrees to this, and will not let him 200.-Dougl. do so, the master will be entitled to the whole freight for the full voyage ;" and if he "hire another ship to complete the voyage," "he shall have his freight of the goods to be reckoned, according to their proportion to the whole cargo, and the goods shall pay the costs of their salvage." It seems to follow from this rule, that if the master will not do so where he can, and carry the goods to the port of delivery, he shall lose all his freight. 9. Ninth. "As to the value of the goods it is nothing to the master of the ship, whether the goods are spoiled or not, provided the freighter takes them. It is enough the master has carried them; for by so doing he has earned his freight, and the merchant shall be obliged to take all or none; he shall not take some and abandon the rest." "If he abandon all, he is excused the freight, and he may abandon all, though they are not all lost." These rules, eight and nine, were laid down in this case, viz: the deft., Lyde, shipped 1501 quintals of fish in the Sarah from Newfoundland to Lisbon, at 2s. freight a quintal. CH. 33. Mal. Lex Mer. 99 to 102.-Abbot 196. Fish cost at Newfoundland 10s. 6d. ; the plts. shipped 945 quintals; this and the ship they insured, but not the freight on the 1501 quintals. Nov. 27, 1756, she sailed from St. Johns, and had been on her voyage seventeen days, when, Dec. 14, she was taken by a French ship within four days' sail of Lisbon. The captain, officers, and crew (except one man and a boy) were put on board the French ship. Dec. 17, the Sarah was retaken by a British ship, and Dec. 29, carried into Biddeford, in England; there the plts. abandoned the ship and the 945 quintals. The deft. had his fish of the recaptors, and paid them 5s. a quintal, salvage, at the rate of one half. The fish could not be sold in England for more than 10s. a quintal. Bilboa was deemed the best market; there the deft. sent his fish without delay, and there sold it at 5s. 6d. a quintal, clear of freight there, and all expenses attending the sale there. The freight from Biddeford to Lisbon was higher than from Newfoundland to Lisbon. All the distance from the place of capture to Biddeford was out of the ship's course. Judgment for the plts. for freight on the half saved, for the part of the voyage performed before the capture; that is, computing the voyage at twenty-one days, freight was allowed for seventeen. The court added, that there was a capture without the master's fault, and a recapture, the deft. did not abandon, but took his goods, and did not require the master to carry them to Lisbon. Some freight then is due, for the freighter received his goods. This was computed as above. The salvage, one half, was considered the same as if half the goods had been lost. Abbot 201, has the same idea, that the expenses paid for saving the goods must be viewed as so much of them lost; hence, if a bale of goods sell for $100, and $75 have been paid for the expenses of saving them, three quarters of them must be considered as lost. So in the Sarah's case, 5s. a quintal on the fish, half the value having been paid as salvage, half was viewed as lost, and freight allowed on the other half pro ratâ itineris. In Coffin v. Storer our court said, this rule adopted in Luke v. Lyde " is manifestly unjust." 10. Tenth rule. If a master state that his ship shall take in a certain lading, and he take in more, especially of other men, he shall lose all bis freight. And in such case, if goods be cast overboard in a storm, the master shall bear the loss, and there shall be no contribution or average. 11. Eleventh. If a ship freighted for one port enter into another by reason of storms, or some force against the master's will, the goods shall be transported to the port of delivery at his charge. And if one compel the master to overload his ship, he is liable to make the master whole. 12. Twelfth. If a merchant freight a ship with all her furniture by the month, he to man and victual her, and contract with the owner to pay him for the use of the ship and furniture £20 every month, at her return to the Thames; and after being abroad about two years she is lost in coming home, the master shall have his freight at the time of the loss, for the money is due monthly. Quære, as to a part of a month. CH. 33. Art. 1. 281, Chenne § 13. After the mortgage of a ship the mortgagee cannot 1 H. Bl. 117. have assumpsit for the freight till he takes possession; for the Imp. M. P. mortgager while he retains possession is owner as to all the ry v. Blackworld; he bears the expenses and is to reap the profits; nor burne.-1 H. does assumpsit lie against the mortgagee for necessaries pro- Jackson v. vided for her before he takes possession. See Mortgages, Vernon. Ch. 112. Bl. 117, 120, Wolf. § 14. Freight to a neutral master, on enemy's goods, can 3 T. R. 323, be settled only in the admiralty; for it is connected with the 348, Smart v. prize question, as whether he has forfeited it by having contraband goods &c., &c. Hence assumpsit does not lie for such master to recover freight on such goods. But he must sue in the admiralty, and found his claim on national law. 104.-12 § 15. The master may retain the goods, shipped on board Imp. M. P. his vessel, till he is paid his freight; but if he parts with the 251.--Dougl. possession of them, he must then resort to his contract. And Mod. 511.— he may plead his lien, or give it in evidence. Mal. Lex See Ch. 44. 2 Dallas 182. 16. If a ship be freighted so much out and so much home, Mer. 98. the outward freight shall be paid, though she perish in return- Dougl. 541. ing home; and when the ship is lost, the whole freight, from -1 Sid. 236. the last place of payment; is lost, except as Sth and 9th. § 17. If the master sail in a tempest, without a pilot, or necessaries, or contrary to contract, he cannot demand freight; his claim to it is forfeited by his misconduct. § 18. The plts. took on board of their vessel two horses of the deft., to be carried from New Haven to Trinidad, for a freight of $70 each. Having been out 13 days, and being within 2 day's sail of Trinidad, the vessel, without any fault of her master &c., was captured by a French privateer, Dec. 1799, and ordered for Guadaloupe. Three days after she was recaptured by the English, and carried into Martinico. The said horses were ransomed at one third of their value. This, Pinto, the deft., paid, and received the horses in good order, and made no objection, and sold them for $420, a good price, and before the plts. had a reasonable time to proceed on the voyage to Trinidad. For Pinto accepted the horses at Martinico, sold them well, and did not request them to be carried to Trinidad. The court held, that Pinto was liable to pay of the freight, so much of the passage having been performed, after deducting the salvage. Cases cited, 1 Brown Mal. Lex Atwater & al. Court of Errors in Con v. Pinto, Sup. necticut. CH. 33. 10 East 526, Liddard v. Lopes. Mass. Sup. Essex Nov. Richards v. Searle & Tyler. Mass. Colony laws, A. D. 1672. 1 H. Bl. 117, v. Vernon. 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 ratâ. Freighters refused to receive the goods at Portsmouth. ART. 2. Several further cases, English and American. 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. § 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 FREIGHT. 679 CH. 33. Art. 2. Sanford.--1 liable for provisions, or entitled to freight, till he got posses8 Johns. R. 159. sion; nor liable for repairs or necessaries. § 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 v. wages, which ship usually transported goods for hire, and J. S. Bac. Abr. 29. 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. all the owners are liable as on contract. But then 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 Held, freight cannot be recovered Com. D. 247. goods delivered at A." 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. § 7. In this case it was held, that if after capture and con- Lex Mer. lie v. Moudigdemnation, the sentence be reversed and the goods be restored, Am. 190,Bail"freight pro rata itineris is due," and so seamen's wages proportion. Freight pro rata &c., see Abbot 335 to 360. in liani. 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 RathEdward and bone and Co. at Liverpool by her owners. 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 Soon after the meeting he received were consigned to him. 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 |