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.

Cuthbert v. Cumming, 24 L. J. Ex. 310.
Windle v. Barker, 25 L. J. Q. B. 349.

But if the merchant has stipulated to pay a certain sum per cask, or bale of goods, the payment must be in the first place according to the number of casks, or bales, shipped and delivered,' and if he has further covenanted to furnish a complete lading or a specific number of casks or bales, and fail to do so, he must make good the loss which the owners have sustained by his failure.2

In Moorsom v. Page,3 it was held, that under a covenant in a charter-party to pay freight on skins by the pound, net weight at the king's beam, freight is due on the outside skins in which the packages are contained.

If an entire ship be hired and the burthen thereof expressed in the charter-party, and the merchant covenant to pay a certain sum for every ton, &c., of goods that he shall put on board, but do not covenant to furnish a complete lading, the owners cannot demand payment for more than the quantity of goods actually shipped.*

Where the merchant engages to pay a certain sum for every month, week, or other period of the voyage, the risk of the duration falls upon the merchant; and in the absence of any stipulation to the contrary, the computation begins from the day on which the ship breaks ground in prosecution of the voyage, and continues during the course of it, in

6

1 McLach. on Sh. 422.

2 Southampton Steam Colliery Co. v. Clarke, L. R. 6 Ex. 53; 40 L. J. Ex. 8 34 Camp. 103. McLach. on Sh. 423.

clusive of unavoidable delays not occasioned by the act or neglect of the owners or master, or by such circumstances as work a suspension of the contract for a particular period. Thus, freight in such a case is payable for the time consumed in necessary repairs during the voyage, if it do not appear that the ship was insufficient at the outset, or that there was any improper delay in repairing her.'

Where the ship is freighted by the month, a calendar, not a lunar, month is to be understood.

3

2

In Turner v. Barlow, Erle, C. J., said: “ In all mercantile transactions in the city of London a month means 'calendar' month." And in the case of a time charter Denman, J., held on the authority of the Commercial Steamship Company v. Boulton,* that the charterers, who had re-delivered the ship to her owners at 5-30 P.M., must pay a day's hire for the five and a half hours they had kept her from noon. By the charter-party, freight was to be paid at a certain rate per calendar month, "and at and after the same rates for any part of the month.”5

When the parties have stipulated for a full and complete cargo of particular kinds of goods to be carried respectively at specified rates of freight, and as the event may be, the ship is sent home empty, or only part loaded, or is loaded in whole or in part with goods to which the rates are not applicable, the

1 Ripley v. Scaife, 5 B. & C. 167; Havelock v. Geddes, 10 East. 555.

following are the rules upon which freight is calculated :

Where the intention of both parties to the contract is obvious, that freight should be earned, and if that is rendered altogether impossible or partially nugatory through fault of the freighter, damages to compensate the loss are recoverable by the shipowner.1

The measure of damages is determined not by what is reasonable, but by what is stipulated specifically between the parties, who thereby evince an intention to ascertain their rights and obligations, even in those cases in which they contract for power, in addition, to load "other lawful merchandise," or "other goods," without appending thereto any particular or general rate of freight.

So where a charter-party provided that the plaintiff should take in a cargo at S. in the Gulf of Bothnia, and without delay proceed to Southampton and deliver it, and on delivery should receive the highest freight which he could prove to have been paid for ships on the same passage by water when the vessel passed Elsinore inwards, but not less than 90s. It was proved that higher freights had been given from S. for vessels than on the voyage to London, and that the freights to Southampton were always not less than 5s. higher than the freights to London-Held that there was no proof of higher freight for the same passage; that the charter-party could not mean by same passage a passage from

1 Gumm v. Tyrie, 34 L. J. Q. B. 124.