should sail from London to Bassein, there to receive a full cargo of rice, and proceed to London direct, and deliver it there on being paid freight, as follows: 57. 58. per ton net price delivered, other goods, if any, in proportion; cash for ships' disbursements to be advanced to the extent of 3007. free of interest, but subject to insurance and 27. 10s. per cent. commission; the freight to be paid on unloading and right delivery as follows: cash less two months' interest, and, if required, 3007. to be paid in cash on arrival, less two months' interest. The ship reached Bassein, and whilst there money was advanced by the charterer's agent for the ship's disbursements. The ship was lost soon after sailing on her homeward voyage:-Held, that on the true construction of the charter-party, the stipulated advance was to be taken as pre-payment of freight, and not as a loan; and that therefore the charterer could not recover back his advance. Lord Campbell, C. J., said:-"The only question is, whether the money disbursed at Bassein by the plaintiff's agent was a mere loan or an advance of freight? The liability of the defendants to refund the money to the plaintiff depending entirely on the construction to be put upon the charter-party. I am of opinion that this sum of 3007. is to be taken as payment of freight. The clause on which the question turns is' cash for ship's disbursements to be advanced to the extent of 300l., free of interest,

Hicks v. Shield, 26 L. J. Q. B. 205.

but subject to insurance,' &c. Now, this mention of insurance seems to me to stamp the transaction indelibly as a payment on account of freight and not a mere loan; for if the advance was to be insured it must be an advance of freight, which is insurable, whereas a loan is not. There is nothing necessarily inconsistent in the other clause that 'the freight is to be paid on unloading, and right delivery of cargo.' This may refer to the payment of the residue of the freight not already advanced. This advance, therefore, not being a loan, but a part payment of freight, the plaintiff cannot recover."

In Byrne v. Schiller,' the ship had been chartered for a homeward voyage from Calcutta, with an option to the charterers to send her on an intermediate voyage, "freight to be paid as follows:- 1,2007. to be advanced to the master and to be deducted, together with 1 per cent. commission on the amount advanced, and cost of insurance, from freight on settlement thereof, and the remainder on right delivery at port of discharge." The master was also "to sign bills of lading at any current rate of freight required, without prejudice to the charter-party, but not under the chartered rates unless the difference be paid in cash." The charterers elected to send the vessel on an intermediate voyage, and paid the 12007., and required the master to sign bills of lading below the chartered rates. The difference, amounting to 7371., was demanded from them by the master,

1 L. R. 6 Ex. 319.

but they refused to pay it, claiming to set off against it the advances made on account of the vessel. The vessel was lost on her way to the intermediate port. It was held, that a payment in advance on account of freight could not be recovered, even though the voyage fail; and that, according to the terms of the charter-party, the payment of the difference was to be a payment in the nature of freight, so that if the defendants had paid the difference in advance, they would not have been entitled to recover it; and that therefore the shipowner was entitled to recover the amount from them, notwithstanding the failure of the voyage.

Where a stipulated sum is agreed to be paid for freight, at all events at the port of loading upon the taking of goods on board to be carried on a voyage, the shipowner, if it is not paid, may recover the same from the shipper, notwithstanding the fact that the goods have been lost on the voyage, and therefore, that as they have not been carried to their port of destination, freight, strictly speaking, had not been earned.1

Where the memorandum of charter-party stated "one-half of the freight to be paid in cash on unloading and right delivery, and the remainder by bill on London at four months' date;" and then, after containing stipulations for unloading, discharging, demurrage &c., added "the Captain to be supplied with cash for ship's use; and in pursuance of this last stipulation, the master drew a bill on the freight

Andrew v. Moorhouse, 5 Taunt. 435.

ers, which was duly accepted and paid :-Held, that this was not to be considered a payment of freight in advance, but as a loan to the owner of the ship, and that (the ship having been lost on her homeward voyage) the freighters had no insurable interest in such bill.1

2

In the John, the charter-party, after specifying what was to be the freight of the homeward cargo, stipulated:" The master to be supplied in the Pacific with a sum not exceeding 2007., free of interest and commission, which is to be deducted from the freight, together with the cost of insurance on such advance, the Captain's receipts to be binding upon the owner." Under this clause in the charter-party, the sum of 280l. was advanced, in the first instance, by the agent of the charterers. The charter-party then further provided:-" And should the charterers or their agents think fit to advance any further sum on the credit of the freight for repairs, stores and disbursements, such sums, with interest and commission, to be considered as part payment of freight; the master's receipt for which is to be binding upon the owners." In considering the effect of these two clauses in the charter-party, Lushington, J., said:— "I conceive I am bound to take them together, and not to divide them into two separate and distinct questions. I should otherwise violate the proper principle of construction to be applied to instruments of this kind, which is as follows, viz: to take into consideration the whole of what is stated by way of

Mansfield v. Maitland, 4 B. & Ald. 582.

23. W. Rob. 170.

stipulation, and endeavour to extract from it the true meaning of the parties. The first question then will be, whether there is any distinction to be made between the original advance of 2807. made in the first instance at V., and the further sum of 28l. 4s. which was subsequently advanced at L. By the first clause, it is to be observed, the master is to be supplied with a sum not exceding 2001. and this sum the charterers are bound to advance. They have no option in the matter, and they cannot decline to make such advancement, without violating the agreement by which they have voluntarily bound themselves. The advance so made, it is further stipulated, is to be free of interest and commission, and is to be deducted from the freight. What I have now to consider upon this part of the charter-party must be, whether, in the intention and understanding of the contracting parties, the original advance was to be made as a loan of 2007, free of interest and commission, and to be deducted from the freight on account, or was it to be taken as an advance of part of the freight itself. From the concluding words in the clause, 'the Captain's receipt for which is to be binding on the owners,' it is possible, that, if taken by itself, some little doubt might arise as to the construction of the clause. It might, on the one hand, be deemed, in the opinion of some persons, that the strict construction of the words implied that the advance was to be an advance not of freight, but of money to be deducted from the freight afterwards;' on the other hand, it might