ered than shipped, as in the case of goods lost on the way, then freight would be payable only on the quantity delivered.1

2

The owner of a ship has a right to commit to any person abroad the office of collecting the freight, and if the shipowner sends an order to a house abroad to collect the freight, that takes the freight out of the hands and control of the master.

The owner has undoubtedly the primary right to receive the freight, and to sue the consignees of the goods for it, and whether the master has any right to receive the freight from them as against his owners, will depend upon the question whether he has any lien upon the freight. The master of a ship has no prospective lien on the freight, and cannot insist on having it paid to himself, although a payment to him, in the absence of any notice by the owner or the charterer to withhold it, would be a good and valid payment.

The master has a special property in the vessel, and may declare for the freight of goods as carried in his vessel, though he be not owner.*

5

In Brouncker v. Scott, Mansfield, C. J., said :— "How long ago it is, since an action brought by a captain of a ship for freight was first entertained, I do not know; but it is observable that with reference to that species of action, that the bill of lading

1 Spaight v. Farnworth, L. R. 5 Q. B. D. 115; 49 L. J. Q. B. 348.

2 The Edmond, Lush. 57.

3 Smith v. Plummer, 1 B. & A. 581.

Shields v. Davis, 6 Taunt. 65.

4 Taunt. 1; Seeger v. Duthie, 30 L. J. C. P. 65.

Freight, by payable.

and to whom

usually specifies" that the captain is to deliver the goods on payment of the freight, "and if he delivers them without such payment, he becomes liable to his owner for so doing; it has been held, therefore, that he may maintain an action against the consignee upon an implied promise to pay the freight, in consideration of his letting the goods out of his hands before payment.

Where freight is payable under a charter-party which does not specify to whom freight is to be paid, the master cannot maintain an action for the freight if the owner demands and receives it.'

The shipowner will not lose the freight due to him even where the master signs bills of lading making it payable to others.

Thus, where the agents of the charterers at the outward port made advances to the master, on condition of the ship taking goods home for them on the return voyage, under bills of lading making freight payable to them, or their assigns, at the port of delivery, and bills of that tenor were signed accordingly; it was held, the master acted in excess of his authority in signing such bills, and the shipowner's lien on the cargo for unpaid freight was not prejudiced thereby."

If the owner part with his property in the vessel during the voyage, the freight is payable to him who is owner when it is earned, and accruing freight

1 Atkinson v. Cotesworth, 3 B. & C. 647.

2 Reynolds v. Jex, 13 W. R. 968.

Morrison v. Parsons, 2 Taunt. 407.

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.2

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? With 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

3

1 Dean v. M'Ghie, 4 Bing. 45; Willis v. Palmer, 29 L. J. C. P. 191. 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.3 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. 87 ; Carver. 8. 599.

3 Osgood v. Groning, 2 Camp. 466; Luke v. Lyde, 2 Burr. 882; Cook r. 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

1 Metcalfe v. The Britannia Iron Works Co., L. R. 2 Q. B. D. 423; 46 L. J. Q. B. 443.

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