3. We have seen a copy of a bill of lading (ƒ), that the master undertakes to deliver the goods upon the payment of freight with primage and average accustomed.

The word primage denotes a small payment to the master for his care and trouble, which he is to receive to his own use, unless he has otherwise agreed with his owners (g). This payment appears to be of very ancient date, and to be variously regulated in different voyages and trades. In the Guidon it is called "la contrabution des chauses ou pot de vin du maitre." It is sometimes called the master's hat money.

It has been held, that primage is primarily payable to the master, and that he may maintain an action for it, although the freight has been separately adjusted. If, however, by the contract between the owner and the master, the master is not to receive primage, he can maintain no action for it, and cases may also arise when a contract between the owner and shipper which excludes primage, may be brought to the knowledge of the master, and prevent him from having any right to claim it (h).

The word average in this place denotes several petty charges, which are to be borne partly by the ship and partly by the cargo, such as the expense of towing, beaconage, &c. Some of the foreign ordinances specify the particulars that fall under this head, and the mode of distributing the charge (i), but with us they depend entirely upon usage, and an attempt to enumerate them would afford neither instruction nor entertainment.

This and the preceding article of primage are often commuted for a specific sum or a certain per centage on the freight.

(f) Chap. 4 of this part, sect. 2. (g) Scott v. Miller, 5 Scott, 15. (h) Best v. Saunders, 1 M. & M. 208. (i) French Ordinance, liv. 3, tit. 7; Avaries, art. 8 and 9, and Ordin. of Stockholm, tit. Average, art. 1; 2 Magens,

277; Ordin. of Wishuy, art. 44, 56, 59, 60; Guidon, chap. 5, art. 12 to 19, and Cleirac on the 24th art. of the laws of Oleron. But by the Code de Com. art. 406, the expense of towage, &c., is to be borne by the ship alone.

who ships goods for the account of, and consigned to, another person. In respect to which, it has been said, that he must give notice of the shipment by a letter of advice, as otherwise the consignee would lose the opportunity to insure them. This rule, however, may be controlled by the course of dealing between the parties, in which case such letter of advice may be dispensed with. Per Lawrence, J. in Goom r. Jackson, 5 Esp. R. 112.

CHAPTER IX.

OF PAYMENT OF FREIGHT; AND HEREIN,

[† 405]

(Ss.)1. In the absence of Express Stipulations- Freight is not due

until the Voyage has been Performed.

2. Modes of its Calculation.

Of an agreed sum for the Voyage.

Of Tonnage-freight. - Of Time-freight.

3. Time and Manner of its Payment. Of the words "on pay

ment of freight" in Bills of Lading, and of their Effect where Delivery has been made without Payment.

4. When a Contract to pay Freight may be implied against the Receiver of Goods under the usual Bill of Lading.

5. Equivalent Recompense in the Nature of Freight, to which (freight not having been earned) the Ship-owner is in

some cases entitled.

6. Freight on Illegal Voyages.

7. Whether Damaged Goods are Exempt from Freight, or may be Abandoned for it.

8. Of Freight pro ratâ itineris peracti.

9. When the Right to Freight Commences.

10. Of Entire, Divided, and Intermediate Voyages. — Freight

how Payable.

11. Of the Jurisdiction Exercised by the Court of Admiralty respecting the Freight of Goods condemned as Prize.

1. In treating of the payment of the freight, (1) the principal duty of the merchant, I shall consider, first, the cases in which the entire freight is to be paid according to the terms of the contract; and, secondly, those in which a part only of the stipulated sum may be claimed.

(1) Freight, in the general legal sense of the term, means all rewards, hire or compensation, paid for the use of ships. Pothier, Traite de Charte-partie, n. 1; Valin, tom. 1, p. 639.

It has been held, that passage money and freight are governed by the same rules, as between the passenger or freighter, and the ship-owner and master. See Mulloy v. Backer, 5 East, 316; Moffat v. East India Co. 10 East, 468; Watson v. Duy kinck, 3 John. 335; Howland v. Livinia, 1 Peters, Adm. 126; Griggs v. Austin, 3 Pick. 20 ; Ante, 378, note. >

The contract for the conveyance of merchandise is in its nature an entire contract, and unless it be completely [t 406] performed †by the delivery of the goods at the place of destination, the merchant will in general derive no benefit from the time and labor expended in a partial conveyance, (1) and consequently be subject to no payment whatever, although the ship may have been hired by the month or week. The cases in which a partial payment may be claimed are exceptions founded upon principles of equity and justice, as applicable to particular circumstances (a). (2)

(a) Crozier v. Smith, 1 Scott, N. R. 338.

On

(1) { C. shipped on board a vessel, of which the plaintiff was master, certain goods, the master undertaking by a bill of lading, the dangers of the seas only excepted, to deliver them at a designated place, for which freight was to be paid at stipulated prices. The vessel having received damage in a gale, put into port, short of the place of destination, when upon examination, it was found, that a portion of the goods were dam aged, which were there sold by the master for the benefit of the owners. In an action brought to recover the balance due for freight, it was held, that it could not be recovered, the goods not having been delivered at the port of destination. Halwerson v. Cole, 1 Spears, 321. See The Ship Nathaniel Hooper, 3 Sumner, 549, 550; Saltus v. Ocean Ins. Co. 14 John. 138; Griswold v. New York Ins. Co. 3 John. 321; 3 Kent, (5th ed.) 219. See Jordan v. Warren Ins. Co. 1 Story, C. C. 352, 353, 355, 356 ; Caze v. Balt. Ins. Co. 7 Cranch, 358.

If it is impossible to deliver the cargo from causes not arising from the default of either party, the shipper will be excused from paying freight. Brown v. Ralston, 4 Randolph, 504; The Ship Nathaniel Hooper, 3 Sumner, 550, 551, 552; Harris v. Rand, 4 N. Hamp. 259; S. C. ib. 555. More especially is this true where the voyage is not completed through the fault of the ship-owner. Hadfield v. Jameson, 2 Munf. 53. If, however, the owner of the cargo is the cause of its not being transported to the port of destination, full freight may be recovered. Bork v. Norton, 2 McLean, 422 ; The Ship Nathaniel Hooper, 3 Sumner, 542; 3 Kent, (5th ed.) 228, 229. See Jordan v. Warren Ins. Co. 1 Story, C. C. 355, 356.

In the case of The Ship Nathaniel Hooper, 3 Sumner, 342, Mr. Justice Story says, that in his opinion, "the whole of the cases in which the full freight is, on the ordinary principles of commercial law, due, notwithstanding the non-arrival of the goods at the port of destination, may he reduced to the single statement, that the non-arrival has been occasioned by no default or inability of the carrier-ship, but has been occasioned by the default or waiver of the merchant shipper. In the former case the merchant-shipper cannot avail himself of his own default to escape the payment of freight; in the latter case, he dispenses with the entire fulfilment of the original contract, for his own interest and purposes."

In the case of Halwerson v. Cole, 1 Spears, 321, it was said, that the only cases where the owner of the goods is bound to pay full freight without delivery, are those, in which the goods have been thrown overboard for the general benefit, or so used as to make the loss of them a subject of general average. >

(2) It is not sufficient, that the goods arrive at the port of destination; but there must be a delivery of them to perfect the right to freight. The master may indeed retain them until the freight is paid; but no action lies until a delivery. Lane r. Penniman, 4 Mass. R. 91; Certain Logs of Mahogany, 2 Sumner, 589. But if a delivery be prevented by the neglect or default of the owner of the goods, the freight becomes payable. Bradstreet v. Baldwin, 11 Mass. R. 229; Palmer v. Lorillard, 16 John. R. 316. So if the goods are tendered to the consignee at the port of destina

the other hand, an interruption of the regular course of the voyage happening without the fault of the owner, does not deprive him of his freight, if the ship afterwards proceed with the cargo to the place of destination, as in the case of capture and recapture (b). (1)

(b) The Race Horse, 3 Rob. Ad. R. 101. And see the Observations of Mr. Justice Chambre and Lord Alvanley in the case of Beal v. Thompson, 3 Bos. &

Pull. 420 and 431, upon the dictum of the late Ch. J. Eyre on this subject, in the case of Curling v. Long, 1 Bos. & Pull.

137.

tion; but the landing of them is prevented by the refusal of the government to allow it to be done, it has been decided in Pennsylvania, that the whole freight is earned. Morgan v. Ins. Co. of N. America, 4 Dall. R. 455. See post, notes to page 425, 472, and 443.3 Kent, (5th ed.) 222, 223. >

(1) And in cases of justifiable capture, the whole freight may be earned although the whole voyage has not been performed. As in case of capture, if the ship be carried into port, and there be an unlivery of the cargo by order of the prize Court, the master is not compellable to unload it, and carry it to the port of destination, although both ship and cargo be released by the final sentence. The reason is said to be, that, as a separation has taken place between the ship and cargo, the contract has ceased by the act of unlivery. At the moment of separation, the ship, if not seized on her own account, acquires a right to proceed, where the master pleases, and the contract being once dissolved, cannot be revived. The Hoffnung, 6 Rob. R. 231; The Race Horse, 3 Rob. R. 101. It is observable, that this doctrine was applied to the case where no proceedings were had against the ship, but she was at liberty to depart, when she pleased; and her remaining in port at the time of the restitution of the cargo, was accidental. How it would be in a case where both ship and cargo were proceeded against and restored at the same time, does not appear to have been decided. See The Martha, 3 Rob. R. 106, note; Wilhelmina Leonora, 3 Rob. 234; 5 Rob. R. 75, note. Post, notes to pages 472, 443.

In cases of capture where the neutral carrier has conducted himself with good faith, he is entitled to the whole freight, although the whole voyage has not been performed, because the performance has been intercepted by the captors, as to the enemy cargo. The Der Mohr, 4 Rob. 314; The Prosper, Edw. R. 72, 76; The Fortuna, Edwards, R. 56, 57. Post, page 472.

But where the ship belongs to an enemy, and the goods are neutral, no freight is allowed to the captors, unless the goods are carried by them to the port of destination, or at least to the country of destination and near to the port. The Vrow Arma Cathe. rina, 6 Rob. R. 269. See 5 Rob. 71; The Fortuna, 4 Rob. R. 278; The Diana, 5 Rob. R. 67; The Fortuna, Edw. R. 56. Post, 472.

Where a ship was hired for a certain voyage at a certain rate per month, and was captured during the voyage, and the hirer, while the ship was in possession of the captors, secretly got possession of a part of the cargo, and brought it home in another vessel; it was held, that the owner of the ship was not entitled to any freight for the part so saved in respect to the hirer; because the whole must be deemed lost by the capture, and the part recovered by the hirer was by an act wholly independent of his contract. Locke v. Swan, 13 Mass. R. 76.

<Where the vessel is detained by an embargo at the port of departure, or in the course of the voyage, the master may wait until the embargo is removed, and then carry the cargo to the port of destination; and if the owner of the cargo insists on receiv ing it short of the port of destination, he must pay full freight. Hadley v. Clark, 8 Term R. 259; McBride v. Mar. Ins. Co. 5 John. 308; Baylies v. Fettyplace, 7 Mass. 325.

So too, in the case of a blockade, or hostile investment of the port of departure,

* But although by the policy of the law freight, strictly so called, does not become due until the voyage has been performed, it is competent to the parties to a charter-party to covenant by express stipulations in such manner as to control the general operation of law. If the charter-party be silent, the law will demand a performance of the voyage, for no freight can be due until the voyage is completed. But if the parties choose to stipulate by express words, or by words not express, but sufficiently intelligible to that end, that a part of he freight should be paid absolutely by anticipation, and not depend upon the performance of the voyage, they are at liberty to do so (c). Such stipulations are by no means uncommon, for the owner of a ship frequently has no agent at the port of loading, but the freighter always has, and, therefore, naturally enough, stipulates to advance money to the owner, which, upon the ship's safe arrival, is deducted from. * the freight.

In this country it is not unusual to pay for goods shipped for the East and West Indies at the time of shipment; but this payment, although in common parlance called freight, is not in strictness properly so denominated, that word denoting the price rather of actual carriage than of receiving goods to be carried.

Accordingly, in the case of Blakey v. Dickson (d), Lord Eldon and the Court of Common Pleas, admitting that an

action might be brought for money, agreed to be paid [ 407] for receiving goods on fshipboard, in order to be transported, decided that such money could not be sued for or recovered by the name of freight.

Some time after this determination, an action was brought upon a supposed agreement of the nature here alluded to; the plaintiff alleging, that in consideration of his undertaking to receive on board his ship certain goods belonging to the defendant, to be carried therein from London to Lisbon, the defendant promised to pay him a certain sum of money on the shipment of the goods. The bills of lading were the only evidence offered by the plaintiff at the trial of the cause (d) 2 Bos. & Pull. 321.

(c) Per Lord Ellenborough in De Silvale v. Kendall, 4 M. & S. 37, post, 408.

after the voyage has actually commenced. Palmer v. Lorillard, 16 John. 348. See post, 598, and note. Unless the cargo is of a perishable nature, and will not endure the delay. The Isabella, 4 Rob. Adm. 77.

But if the voyage is broken up, after its commencement, by war, or interdiction of commerce with the place of destination, the contract is dissolved, and no freight is earned. Scott v. Libby, 2 John. 336; The Hiram, 3 Rob. Adm. 180. See post, part 4, ch. 13, p. 595, et seq. and notes. >