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of the cargo as delivered. By reason of a diminution in weight of the cargo during the voyage, the amount of the bill of lading freight, for which the shipowner had a lien, did not wholly cover the amount due for lump freight under the charterparty. The shipowner sued the charterers to recover the difference:-It was held, that the cesser clause only relieved the charterers from liability to the extent to which the shipowner had obtained a lien for the freight on the cargo, and, therefore, the charterers were liable."
Freight, as between the shipowner and the shipper, is strictly speaking, the price to be paid by the latter to the former for the carriage of goods by ship, and is not earned or payable till the arrival and delivery of the goods at their port of destination. And it has been held that the terms cargo and freight apply only to goods."
By the policy of the law of England, freight strictly so called, does not become due until the voyage has been performed. But this expression does not afford a sufficiently definite rule. The question will constantly arise as to when the voyage has been performed, and for this purpose the particular stipulations of each charter-party respecting the payment of freight must be considered.
In Cato v. Irving,-Parker, V. C., determined that the voyage was not ended on the mere arrival of the ship in port. He said "the right to the freight does
1 McLach, on Sh. 452.
2 Lewis v. Marshall, 7 M. & G. 729.
3 De Silvale v. Kendall, 4 M. & S. 42.
+21 L. J. Ch. 675.
not accrue until the goods are not only conveyed to their destination, but are also delivered." And it is singular that no distinct authority seems to carry the point further. In Brown v. Tanner,'-Wood, V. C. said: "On principle, we conceive that the freight cannot be due from the charterers on a charter-party such as the present, until they have had the full user of the ship for the purposes for which they chartered it. It is in fact, analogous to the demise of the property until a given purpose is answered; the purpose in that case being, first, the outward voyage; secondly, the taking in of a complete cargo at such profit freight as the contractors be able to obtain above the freights they have agreed to pay to the owner; and thirdly, the delivering of the cargo to the consignees by the charterers. The freight is expressly payable (under the charter-party) on unloading and right delivery of the cargo as customary,' and the freight is to be collected by the charterers.' Now, it is not alleged that there was any undue delay on the part of the charterers in the unloading and delivering. Until, therefore, that was absolutely completed, it appears to us the freight was not due to the owner."
The title to freight is conditional on performance, and payment thereof is secured by a lien at common law on the goods carried. Sums payable in advance, as where the ship was to receive 42 casks of wine to be carried from London to the Cape, the shippers
undertaking to pay charterer 57. per ton for the casks, on delivery to the shipper of the proper bill of lading of the casks on board the ship, not being dependent on performance of the carrier's contract, are not of the nature of freight, though often called by that name, and the incidents of freight do not attach thereto.1
The word "freight" in insurance law, and as employed in policies, has a more extensive signification than in the general law of shipping, and is used comprehensively to denote the benefit derived by the shipowner from the employment of his ship; so in policies of insurance, freight denotes the price agreed to be paid by the charterer to the shipowner for the hire of his ship under a charter-party, or contract of affreightment. Hence the definition of freight, as a subject of marine insurance, that it is either the remuneration to be paid to the shipowner for the hire of his ship, under an express contract of affreightment for a certain voyage, or the price to be paid to him for the carriage of goods, irrespective of such contract. It may further be applied to denote the benefit which the shipowner expects to derive from the carriage of his own goods in his own ship, in the shape of their increased value to him at the port of delivery."
The term "dead freight" is an inaccurate expression of the thing signified by it. It is not freight,
1 Andrew v. Moorhouse, 5 Taunt. 435.
2 Arnould on M. I., 6th Ed. Vol. 1, 31; Allison v. The Bristol. Mar. Ins. Co., L. R. 1 App. Cas. 209.
but an unliquidated compensation for the loss of freight, recoverable in the absence and place of freight. It is the only expression given for the claim which arises in consequence of the failure to furnish a full cargo. It is so described in the English authorities and also in the Scotch. Professor Bell so represents it in his "Commentaries," and also in his "Principles," and it is also so defined in the "Law Dictionary." It is a term which has obtained a place in our mercantile language as well as in our law authorities.
What is called "dead freight" is recoverable by the shipowner from the freighter for deficiency of cargo.1
There can be no lien at law in respect of a claim for dead freight; inasmuch as there are e concessis no goods upon which it could attach.
By contract, however, there may certainly be a lien for dead freight on the cargo actually carried, if the amount be fixed or capable of calculation, and even where the damages were unliquidated.3
Lord Colonsay in the course of his judgment in McLean v. Fleming' said:-"Where there is merely a failure to fulfil an obligation to furnish a full cargo there is a claim for dead freight, but no right of lien. On the other hand I think it is equally clear, both on principle and on authority, that if
1 McLean v. Fleming, L. R. 2 H. L. Sc. 128; Phillips v. Rodie, 15 East 554; Bell's Prin., s. 430.
* Phillips v. Rodie, 15 East 547; Birley v. Gladstone, 3 M. & S. 205. 3 Tudor's L. C. in Merc. & Mar. Law, 3rd Ed. 374.
there be a stipulation in the charter-party that dead freight shall be exigible, and that there shall be a lien for it on the cargo, then there is a lien constituted by contract. Lien is not properly a contract in the strictest sense of the law, because lien is more properly a right which the law gives without contract, but it may be constituted by contract."
Knight Bruce, L. J., delivering judgment in the Privy Council in the case of the "Norway,"1 said: "Although the lump sum is called 'freight' in the bills of lading and charter-party, yet we think it is not properly so called, but that it is more properly a sum in the nature of a rent to be paid for 'the use and hire of the ship' on the agreed voyage. The shipowner is entitled to be paid the lump freight without any deduction for a loss of part of the cargo occurring during the voyage without the negligence or fault of the shipowner."
The plaintiff chartered a ship, of which he was master, to one C. II. C. of Calcutta, under a charterparty, by which it was agreed that the ship should proceed to certain ports, and there load a cargo for Calcutta; "the cargo to be delivered to the charterer at Calcutta, on being paid freight at and after the rate of a lump sum for the full reach of the ship; the said freight to be paid on the unloading, and right delivery of the cargo as customary, less any advances that may have been made." On the arrival of the ship at Calcutta,
13 Moo. P. C. C. (N.S.) 215; Robinson v. Knights, L. R. 8 C. P. 465.