worthless. But, is this such a case?] Not if that expression is to be understood as importing the utter annihilation of the article. In Roux v. Salvador, 1 N. C. 526, 1 Scott 491 (in error, 3 N. C. 266, 4 Scott 1), the hides, though useless as hides, would be worth something for manure. The authority of Parsons on Maritime Law and Benecke on Insurance carries the matter no further: and Mondel v. Steel, 8 M. & W. 858, depends upon a principle which is wholly inapplicable here. Here, the basis of the plea is, that the service has become wholly useless through negligence.

*Cohen, in reply. The dictum of Lord Mansfield in Luke [*660 v. Lyde is admitted to be extra-judicial; and it has never been adopted. In Maclachlan 403, it is said: "Mr. Abbott, in his work on Shipping (see Abbott, 8th edit. 430-433), without expressly stating, seems to indicate, an opinion unfavourable to the existence of any such right in the merchant to abandon his goods for the freight; and, for the reasons offered by Pothier on the general rule, it is scarcely doubtful that, within the same limits, the law of this country will be found to be the same as the French law: but, in the absence of express contract, or established usage, or positive enactment, it is hardly probable that the exceptional French rule with regard to liquids will be followed by the English decisions, when any of the liquid remains, or even the cask is entire,"-citing Davidson v. Gwynne, 12 East 381; Shields v. Davis, 6 Taunt. 65, and Garrett v. Melhuish, 4 Jurist, N. S. 943. It is unnecessary on the present occasion to argue that the plea would have been a bad one, if it had alleged that the damage resulting from the negligence of the master and crew exceeded the amount of the freight.

ERLE, C. J.-We do not feel much doubt. But, as the matter is one of general importance, we will examine the authorities referred to, and give our judgment on a future day. Cur, adv. vult. WILLES, J., now delivered the judgment of the court:(a)This is an action by shipowner against charterer to recover the freight of a cargo of coal carried from Newport to Nassau.

*The first count is upon the charter-party. The second is [*661 the common count for freight. The defendant pleads, that, by the fault of the master and crew, and their unskilful and negligent navigation of the vessel, the coal was damaged so as upon arrival at the port of discharge to be then there of less value than the freight, and that he abandoned it to the shipowner. The plea, as it does not deny, admits that the cargo arrived as coal, and that it was of some value. The plaintiff demurs: and the question for us to consider is, whether a charterer whose cargo has been damaged by the fault of the master and crew so as upon arrival at the port of discharge to be worth less than the freight, is entitled to excuse himself from payment of freight by abandoning the cargo to the shipowner. We think not: and we should not have taken time to consider, but for the general importance of the subject, and of its having been suggested that our law was silent upon this question, and that the plea was warranted by the usage and law of other maritime countries, which, it was said, we ought to adopt.

(a) The judges present at the argument were, Erle, C. J., Williams, J., Willes, J., and Keating, J.

The principal foreign authorities upon the effect of damage to the cargo upon the right to freight, are referred to in Abbott on Shipping, Part IV, Ch. IX, pp. 324, et seq. of the 10th edition, by Serjt. Shee. The ancient and modern French laws are stated and discussed in Boulay-Paty, Cours de Droit Maritime, vol. 2, pp. 484 et seq. The Spanish law is to be found in articles 787 to 790 of the Codigo de Comercio, and in de Bacardi's Diccionario del Derecho Maritimo, title "Fletamento." The law of the United States is laid down in 1 Parsons on Maritime Law 172, n.

The continental authorities are not altogether consistent with one another; and, in so far as they tend to sanction this plea, they seem to have been founded upon two notions,- first, that the cargo is the sole and exclusive security for the freight, to which the ship*662] owner ought to be contented to look, and by abandoning which the merchant ought to be allowed to free himself from any responsi bility, and second, that, in the case of culpable damage, the freight is forfeited. The first of these propositions was maintained by some even in the case of fortuitous damage (2 Boulay-Paty, 484 et seq.; Casaregis de Commercio, Discursus xxii. p. 60, No. 46): and it has even been insisted, but unsuccessfully, that it applied to the case of undamaged goods, (Gilbert's Code de Commerce, note 3 to Article 310, p. 139 of the edition of 1852). This doctrine, as applied to fortuitous damage, must, however, now be considered as exploded, upon the plain ground that a contract to pay for the carriage of a thing in money cannot be satisfied by a cession of the thing itself in a damaged state to the carrier, against his will.

With respect to goods damaged by the fault of the master, it has also been laid down in general terms, in conformity with the second of the governing ideas already stated, that the master, besides being liable for the damage, shall lose his freight. This was the law of the Hanseatic League (2 Pardessus's Collection of Ancient Maritime Codes, p. 550), and of other commercial nations: 1 Casaregis de Commercio, Discursus xxiii. Nos. 85 to 89, p. 66.

Casaregis, besides being one of the best of the commercial lawyers who wrote before the introduction of the modern codes, has given in his elaborate work, references to the more ancient writers; and we content ourselves with referring to his summary of the law as then understood upon the continent. He was born at Genoa in 1670, and died in 1737, after having been for more than twenty years a judge of the Rota of Florence.

*663] In one of the passages last referred to, that great *lawyer (No. 85) first states that the effect of culpable damage was to work a forfeiture of freight,-"Non solum tenetur navarchus ad emendationem damni ejus dolo, vel culpa mercibus obventi, sed mercedem sive naulum etiam prætendere non potest." Here the doctrine of forfeiture is clearly asserted; and the same in No. 16 of the same discourse.

The author then proceeds to state, that, where damage is occasioned by accident, without fault, the merchant may abandon if he thinks proper," Adverte tamen quod si merces corruptæ vel vitiatæ fuerint ob casum fortuitum, non culpa navarchi, mercator tenebitur integrum naulum solvere, vel si ei non intererit integrum naulum solvere

poterit loco nauli merces relinquere, et ratio est quia naulum debetur proper merces."

He then goes on to state, upon the authority of Targa, that this only applies in favour of the consignee, and not of the charterer of the entire ship, who is bound by his contract to pay the stipulated freight upon the arrival of the goods,-"Id procedit in mercatore, cui consignandæ sunt merces à navi conductæ, secus in naulizatore totius navis, quià ille indistinctè tenetur semper naulum conventum pro tota navis locatione solvere. Targ. Ponder. Marit. c. 84, § per li noli."

Moreover, he adds, that, in the case of culpable damage, it is not competent to the merchant to abandon the cargo to the shipowner and claim the whole value, except where the goods are reduced to a state of uselessness or nearly so: clearly showing that the right of abandonment in such a case affected the amount of damages, and not the freight. In No. 89, citing John de Hævia, a Spanish writer of repute, Casaregis expressly says,-"Non autem est in electione dominorum mercium, aut recipere res deterioratas et petere damnum, vel eas relinquere magistro et petere ut solvat *pretium, sed illas [*664 præcisè recipere debent, et petere à magistro damnum, quod passæ fuerint, præterquam si hujusmodi damnum esset inutile, quia ferè res redacta fuerint ad inutilitatis statum, tunc enim illas relinquere poterunt et simul pretium ab eo petere, ad latè tradita per Hæviam de Commercio Navale, c. 12, n. 38."

It should seem, therefore, that the notion of the cargo being the sole security in case of fortuitous damage, and that of forfeiture of freight by culpable damage, neither of which is consistent with the principles of our law of contracts, was the prevailing idea amongst those lawyers who held abandonment to be a satisfaction of freight; and that it was not a condition in their laws that the cargo should be worth less than the freight, although practically it was only in such a case, or where he wished to get rid of a troublesome adventure, that the merchant would with his eyes open exercise the right to abandon. We have to add that the law of the United States is unfavourable to this plea. Professor Parsons, in his learned work upon Maritime Law, Vol. I, p. 172, lays down as the rule of those states, that if the cargo arrives in specie, notwithstanding that it is damaged, whether fortuitously or culpably, so as to be worthless, the freight is earned, although, in case of culpable damage, set-off is allowed. This allowance of set-off, it must be observed, affects procedure only; so that we could not adopt it even in the case of a contract made where such law prevails. Indeed, in this case a set-off could not avail the defendant; for, the damage is not alleged to have been equal to the freight.

It ought to be borne in mind, when dealing with such cases, that the true test of the right to freight, is, the question whether the service in respect of which the freight was contracted to be paid has been substantially performed; and, according to the law of [*665 England, as a rule, freight is earned by the carriage and arrival of the goods ready to be delivered to the merchant, though they be in a damaged state when they arrive. If the shipowner fails to carry the goods for the merchant to the destined port, the freight is not earned. If he carry part, but not the whole, no freight is payable in respect of the part not carried, and freight is payable in

respect of the part carried unless the charter-party make the carriage of the whole a condition precedent to the earning of any freight,-a case which has not within our experience arisen in practice.

As to freight pro ratâ itineris, in respect of goods accepted, and their future carriage waived, at an intermediate port, it becomes due, not under the charter-party, but by a new contract inferred from the conduct of the parties, so that we need not stop to discuss it. It was in such a case that Lord Mansfield in Luke v. Lyde, 2 Burr. 882, 1 W. Bl. 190, said that the merchant, "if he abandons, is excused freight, and he may abandon all though they are not all lost." This is correct, if, instead of "abandon" be read "decline to accept," because it is clear, that, where the goods have not been carried all the way, the merchant need not, in order to prevent a liability for freight pro ratâ, give up the property to the shipowner; and abandonment, in maritime law, involves a giving up of the property.

Little difficulty exists in applying the above test where the cargo upon arrival is deficient in quantity. Where the cargo, without loss or destruction of any part, has become accidentally swelled (Gibson v. Sturge, 10 Exch. 622), or, perhaps, diminished, as, by drying (Jacobsen's Sea Laws, Book 3, Ch. 2, p. 220), freight (usage of trade apart) is payable upon the quantity shipped, (a) because that *666] is what the contract refers to. The Spanish Code of Com

merce makes a distinction between decrease and increase. Article 787 provides that the entire freight shall be due for goods which are deteriorated or diminished by accident without fault (caso fortuito), by intrinsic defect, or by the bad quality and condition of the packages. On the other hand, article 791 enacts, that, if the merchandise is increased in bulk or weight by natural causes, the merchant shall pay freight in proportion to the excess.

In the case of an actual loss or destruction by sea damage of so much of the cargo that no substantial part of it remains; as, if sugar in mats, shipped as sugar and paying so much per ton, is washed away, so that only a few ounces remain, and the mats are worthless, the question would arise whether practically speaking any part of the cargo contracted to be carried has arrived. Such a case seems to be within the principle of the French Ordinance and the second clause of Art. 310 of the Code de Commerce, though they are both in terms confined to the case of liquids where all or nearly all has leaked out, so as to include molasses, but not sugar. Pothier, "Sur la Chartepartie," 60 (4th Vol. of Pothier's Works by Bugnet, p. 404), deals with these as cases in which the thing contracted to be carried has perished before arrival. The Spanish Code of Commerce, Art. 790, after enacting that the shipowner cannot be compelled to receive the cargo, whether damaged or not, in payment of the freight, arbitrarily lays down, as to liquids, of which more than half has been lost, that the merchant may abandon the rest for the freight. A reference to these provisions is enough to show that the task of finding an uniform rule in modern commercial law is at present impossible.

*Where the quantity remains unchanged, but by sea*667] damage the goods have been deteriorated in quality, the ques

tion of identity arises in a different form, as, for instance, where a valua (a) See Shand v. Grant, antè, p. 324.

ble picture has arrived as a piece of spoilt canvas, cloth in rags, or crockery in broken sherds, iron all or almost all rust, rice fermented, or hides rotten.

In both classes of cases, whether of loss of quantity or change in quality, the proper course seems to be the same, viz., to ascertain from the terms of the contract, construed by mercantile usage, if any, what was the thing for the carriage of which freight was to be paid, and by the aid of a jury to determine whether that thing, or any and how much of it, has substantially arrived.

If it has arrived, though damaged, the freight is payable by the ordinary terms of the charter-party; and the question of fortuitous damage must be settled with the underwriters, and that of culpable damage in a distinct proceeding for such damage against the ship captain or owners. There would be apparent justice in allowing damage of the latter sort to be set off or deducted in an action for freight; and this is allowed in some (at least) of the United States,1 Parsons on Mercantile Law 172, n. But our law does not allow deduction in that form; and, as at present administered, for the sake perhaps of speedy settlement of freight and other liquidated demands, it affords the injured party a remedy by cross-action only: Davidson v. Gwynne, 12 East 381; Stinson v. Hall, 1 Hurlst. & N. 831; Sheels (or Shields) v. Davies, 4 Campb. 119, 6 Taunt. 65 (E. C. L. R. vol. 1); the judgment of Parke, B., in Mondel v. Steel, 8 M. & W. 858; The Don Francisco, 32 Law J., Adm. 14, per Dr. Lushington. It would be unjust, and almost absurd, that, without regard to the comparative value of the freight and cargo when *uninjured, the risk of a mercantile adventure should be thrown upon the shipowner by [*668 the accident of the value of the cargo being a little more than the freight; so that a trifling damage, much less than the freight, would reduce the value to less than the freight; whilst, if the cargo had been much more valuable and the damage greater, or the cargo worth a little less than the freight and the damage the same, so as to bear a greater proportion to the whole value, the freight would have been payable, and the merchant have been put to his cross-action. Yet this is the conclusion we are called upon by the defendant to affirm in his favour, involving no less than that that damage, however trifling, if culpable, may work a forfeiture of the entire freight, contrary to the just rule of our law, by which each party bears the damage resulting from his own breach of contract, and no more.

The extreme case above supposed is not imaginary; for, it has actually occurred on many occasions, and notably upon the cessation of war between France and England in 1748, which caused so great a fall in prices that the agreed freight in many instances exceeded the value of the goods. The merchants in France sought a remission of freight or the privilege of abandonment, but in vain. (2 BoulayPaty, Cours de Droit Commercial 485, 486.)

It is evident enough from this review of the law that there is neither authority nor sound reason for upholding the proposed defence. The plea is naught, and there must be judgment for the plaintiff. Judgment for the plaintiff.