passes to the mortgagee of a ship who takes possession before the conclusion of the voyage.1

If the owner charter his vessel to another, who puts her up as a general ship, the freight afterwards earned by her in that capacity is payable to the charterer, subject to the owner's lien."

With

Where the ship has been chartered, and goods have been shipped under bills of lading reserving freight, the questions arise, by whom can the freight be claimed from the consignees ? and who is entitled to have it when it has been paid? Is the charterer or the shipowner to sue for the bill of lading freight? and which of them is the true owner of it? regard to suing, the action must be either on the bill of lading contract, or on an implied contract, arising on the claim for delivery, and the giving up the lien on the goods. On the latter ground the action would be by the shipowner. On the bill of lading contract, it should be by him whose contract that is.

But the question whether the owner or the charterer is entitled to the bill of lading freight when received, depends upon the contract between them. And if the result of that is to make the charterer entitled to some portion of the freight, and notice has been given to the consignees not to pay that part to the shipowner, they will be protected in refusing to do so. If by the charter the shipowner was to have a lien on the goods for the

1 Dean v. M'Ghie, 4 Bing. 45; Willis v. Palmer, 29 L. J. C. P. 191.

2 Marquand v. Banner, 6 E. & B. 232; Small v. Moates, 9 Bing, 574; Miller v. Woodfall, 27 L. J. Q. B. 120.

3 Neill v. Ridley, 9 Ex. 677; Zwilchenbart v. Henderson, 23 L. J. Ex. 234, Michenson v. Begbie, 6 Bing. 190.

When freight

becomes payable.

charter-party freight, he is entitled to keep the bill of lading freights so far as is necessary to satisfy his claim. But where the bill of lading freights are payable at a time and in a manner which are inconsistent with a lien upon the goods or upon those freights, for the charter-party freight the case may be different.2

According to the terms of an ordinary charterparty or bill of lading the whole voyage for which the freight is agreed to be paid, must be accomplished before any freight becomes payable.

Freight cannot be recovered on the charter-party, unless the stipulated voyage has been actually performed; and there is no implied promise to pay a compensation for carrying goods a part of the voyage, unless they are voluntarily accepted at a place short of the port of destination. The master cannot, by wrongfully stopping short of the place of destination, compel the owner of the goods to take them and pay the freight, even for the part of the voyage performed, any more than the charterer, or shipper, on the other hand, can insist on having the cargo delivered at an intermediate place, so as to deprive the shipowner of the opportunity of earning his full freight. If he desires to have his goods short of their original destination, unless some arrangement is come to between them, he must satisfy

1 Christie v. Lewis, 2 B. & B. 410.

2 Marquand v. Banner, 25 L. J. Q. B. 313; The Eliza, 3 Hagg. S7; Carver. 8. 599.

3 Osgood v. Groning, 2 Camp. 466; Luke v. Lyde, 2 Burr. 882; Cook v. Jennings, 7 T. R. 381; Smith v. Wilson, 8 East. 437; Hunter v. Prinsep, 10 East. 378; Liddiard v. Lopes, 10 East. 526.

Notara v. Henderson, L. R. 7. Q. B. 225.

the shipowner for the entire freight as fixed by the charter-party or bill of lading. But it is obvious that while such is the absolute right of each of the parties, this right may be varied or waived; and that while the shipowner may be willing to forego his right to earn the entire freight, on being paid a rateable part for so much of the voyage as has been performed, the owner of the goods, on the other hand, may be willing to take them at an intermediate place, and to waive the conveyance of the goods to their original destination, paying a proportionate part only of the freight, all claim to the residue being abandoned Such an arrangement in substitution of the original contract, may not only be express, but may also be implied from the circumstances and the conduct of the parties, and ought to be so implied where justice and equity require it.1 In Hopper v. Burness, the ship was chartered to the defendant for a voyage from Cardiff to Point de Galle; the freight was 21s. per ton of coals (of which the cargo consisted,) payable upon the quantity delivered at Point de Galle. The ship was disabled by perils of the sea, and put in at the Cape of Good Hope, and there the captain was unable to borrow money on bottomry or otherwise. The captain sold a portion of the coal and having expended the amount realised upon the repairs of the ship, he proceeded to Point de Galle, and delivered that part of the cargo which remained.

2

Metcalfe . The Britannia Iron Works Co., L. R. 2 Q. B. D. 423; 46 L. J. Q. B. 413.

2 L. R. 1 C. P. D. 137; 3 Asp. M. L. C. N. S. 149.

If

It happened that the coals which were sold at the Cape of Good Hope fetched more than those which were taken on and sold at Point de Galle, and it was suggested that, therefore, the plaintiff was not only entitled to freight on the coals delivered at Point de Galle, but also to other freight for the coals which were sold at the Cape of Good Hope. Brett, J., said:-"According to the charterparty freight was obviously only to be paid on coals delivered at Point de Galle, and if the plaintiff is entitled to freight on the coals sold at the Cape of Good Hope, it must be on some other ground. he is entitled on any ground, it would be that he had become entitled to freight which was earned at the Cape of Good Hope. I know of no mode by which the shipowner can become entitled to freight on such a charter-party as this, where the goods are not delivered, unless he becomes entitled to freight pro rata. The principle of pro rata freight is, that it is payable where there is a mutual agreement to do certain things, on which the law will imply an undertaking to pay, not the stipulated freight, but freight pro rata. The only case in which it can become payable is where the captain is able and willing to carry on the cargo, but the charterer or shipper desires to have the goods at an intermediate port, and the captain gives them up at the owner's request, express or implied. There is an implied promise to pay freight. Here the captain sells the goods, and by that very act puts it out of his power to say that he was ready to carry them on to the port of destination, for he was not

able to do so. the liability to pay freight pro rata depends does not exist. It has been said that the charterer has an option, and that here the charterers have exercised that option, and therefore by implication they undertook to pay pro rata freight. It was said that the charterer has an option to treat the proceeds of a sale as a loan, or to say, 'you sold my goods against my will; I cannot say that you did wrong, because the law allows it under the circumstances, but I insist on an indemnity,' not treating it as a mere loan; in fact, that he has an option either to treat it as a loan or to require an indemnity. If it is treated as a loan, it does not come within the rule; it gives no claim to pro rata freight. If the charterer is of opinion that the goods have fetched more at the intermediate port than they would have fetched if they had been carried on to the port of destination, he may treat the transaction as a loan at once, and may sue for the amount of the proceeds of the sale before the ship has arrived at her port of destination. If the ship is lost between the intermediate port and the port of destination, he cannot ask for an indemnity on the footing that the goods would have fetched more at the port of destination. If the ship had been lost between the intermediate port and the port of destination, he never would have been able to insist, it would not have been in his power to insist on an indemnity. He could say that it was a loan, and that as the shipowner had

Therefore one ground on which