Thus, where the charter-party contained a proviso that the charterer's agents should advance money to the master on the freight, in these words :"Charterer's agents to advance the master what money he requires for the necessary ordinary disbursements of the ship at M., at current rates of exchange, for the due appropriation of which they shall not be held to be responsible; the amount to be deducted from the freight on settlement thereof, together with interest and cost of insurance." Whilst the ship was lying at Suez, on her outward voyage, the master entered into a bottomry bond which recited that the master was under the necessity of taking up money to enable the ship to perform her voyage to the East Indies and home, on the security of the barque, as also of the cargo and freight to be shipped at Moulmein or Rangoon. 3507. was the sum advanced. The master covenanted that, in consideration of this 3507., he bound the barque, her tackle and apparel, as well as the cargo to be shipped, as also the freight thereon, which should become due as per charter-party; to pay 6657. when the ship arrived at Moulmein-subsequently, therefore, to this bond, and with full notice as the evidence clearly shewed, of the bond-the charterers advanced 926l. 11s. 6d. to the master, and insured the advance for 1177. 1s. 7d. Later still, at the Cape, the master sold part of the cargo, the property of the defendants, to pay debts incurred by the ship. The two questions before the Court were-First, whether the defendants, the consignees of the cargo, not

withstanding the charter-party, were entitled to deduct, as against the plaintiffs, from the freight all advances (whether ordinary or extraordinary) admitted to have been made by them; and, secondly, whether they were entitled to deduct from the said freight the value of the cargo sold at the Cape of Good Hope. Dr. Lushington, in delivering judg ment, said:-"The question is, whether the bond can affect and render null a previous contract as to advances on the security of freight, though made subsequently to the bond. Assuming the advances to be according to the terms of the contract, there is no obscurity in the charter-party. I think that the true construction of this charter-party is, that the money to be advanced was to be advanced on the security of the freight, and that I hold to be tantamount to the advance of the freight itself. Now, can the master or the owner of the ship, by any act of theirs, without the knowledge or consent of the charterer, cancel or alter the terms of the charter, and especially in a case like this, deprive the charterer of a security for advances he has bound himself to make? I think not. Whether this money be not freight in the hands of the owners, is a wholly different question, not arising in this case. I am, however, well satisfied that no claim can be preferred against the charterers, for payment of this freight, for they, on the supposition alleged, have paid it in pursuance of a binding contract. This part of the freight is not in their hands. When the

The Salacia, 32 L. J. Ad. 43.

money was advanced it was the liquidation of so much of the freight. If I entertained any doubt in this case, which I do not, it would be removed by reference to the bond itself, whereby it appears that the freight hypothecated was to be the freight according to the charter-party, and of course subject to all legal deductions, according to the terms of the charter. Now as to the next point, I will assume that the money was advanced for extraordinary expenses. By extraordinary expenses I mean expenses not included within the terms of the charter-party; necessary, ordinary disbursements. For the purpose of giving an opinion on this question, I must assume that the agent of the charterers knew that the money was advanced for extraordinary expenses, for if they advanced the money, having reason to believe it was for ordinary expenses only, then, by the terms of the charter, neither they nor their agents were bound to look to the expenditure. Now if this be so, then I think that such an advance was not secured by the charter on the freight, and that it constituted merely a loan, a debt against the owner. It is important to bear in mind the essential difference between an advance on freight and an advance of money, not on the security of the freight, in the shape of a loan for the necessities of the ship. advance on freight can only be made in virtue of stipulations contained in the charter-party. It is an insurable interest, because the earning of freight is liable to contingencies. A loan of money to the master for the use of the ship, though authorized

An

by the charter to be advanced, if not authorized by the charter to be deducted on settlement of freight, is not freight, is not insurable, for, whatever may happen to the ship, an action lies against the owners of the ship for the recovery thereof. If there was no advance of the freight, nor of monies on the security of the freight, as by the charter, then I am of opinion that so much of the freight must be considered, quá the bond-holder, as remaining in the charterer's hands, and as lawfully pledged to them by the bond. In other words, I consider that by the bond, from the date of it, the whole freight is hypothecated, save what may be subsequently paid in pursuance of prior contract. As to the other point. Certain goods of the charterers were sold at the Cape to pay the ship's expenses. Under these circumstances, I apprehend that the owner of the goods would have a right to recover the value from the owner of the ship." In Campbell v. Thompson,1 Lord Ellenborough held, "that the merchant was entitled to deduct from the freight payable the value of the goods sold. I am not clear that the cases which have subsequently occurred do not militate against the doctrine laid down there. It appears to me that, if you raise money for the purpose of paying for the wants and exigencies of the ship, you must pay back to the owner of the ship that which was due to him. Whether you call it freight or any thing else, that cannot make any difference."

11 Stark. 490,

Freight how calculated.

The mode of ascertaining the amount of freight is as various as the contracts on which it depends.

When goods are conveyed by a general ship, the rate of freight is fixed, either by express agreement or by the usage of trade.

The master of a ship has no authority to sign bills of lading for a lower rate of freight than the owner had contracted for.1

In the case of a charter-party, if the stipulated payment is a gross sum for an entire ship, or an entire part of a ship for the whole voyage, the gross sum will be payable, although the merchant have not fully laden the ship; and if a certain sum be stipulated for every ton or other portions of the ship's capacity for the whole voyage, the payment must be according to the number of tons which the ship is proved capable of containing, without regard to the quantity actually put on board by the merchant.2

But evidence is admissible to show that the cargo supplied is a full and complete cargo, according to the custom of the port of loading.3

Where the ship was described in the charter-party as "being of the measurement of 180 to 200 tons or thereabouts," it was held to be no excuse for not loading her that her tonnage was 257 tons only.*

1 Pickernell v. Jauberry, 3 F. & F. 217.

2 Hunter v. Fry, 2 B. & A. 421.

3 Cuthbert v. Cumming, 24 L. J. Ex. 310.

Windle v. Barker, 25 L. J. Q. B. 349.