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.

Therefore one ground on which 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

sold part of the cargo he must pay the price of it to the charterer. If the goods fetch more at the intermediate port than they would have fetched at the port of destination, the owner of the cargo insists upon treating the transaction as a loan, as is the case here. If he had insisted on an indemnity, on the footing that if the goods had been carried on, they would have fetched more, he would have been entitled to claim the difference between the price at the intermediate port and the price at the port of destination, but he would have had to allow for freight. has a right to treat it as a loan, and if it is treated as a loan the claim to pro rata freight cannot arise, and the shipowner cannot add pro rata freight to the charter-party freight. It is a hardship arising from the form of the contract and from the nature of maritime perils. The proper remedy would be for the shipowner to insure the freight, and if he did, I have no doubt that under such circumstances as these he could recover."

But he

The question whether the freight is intended to be paid independently of delivery is one of construction of the contract.1

In the case of the "Teutonia," Sir R. Phillimore, in delivering judgment, said: "The general rule that freight is due only when the goods are delivered at the port of destination, is subject to exceptions or modifications, and these exceptions or modifications may arise out of the terms of an express

1 Mashiter. Buller, 1 Camp. 84; Krall v. Burnett, 25 W. R. 305. 2 L. R. 4 P. C. 171; 41 L. J. Ad, 57.

contract, out of an implied contract, or out of the equity between the parties. The law of England, as administered in the Courts of Common Law, requires the master to carry the goods to the place of destination, unless prevented by an unavoidable casualty; and requires the merchant, if the goods be so delivered, to pay the stipulated freight."

Where A. had chartered a vessel from I. to L. with a full cargo of petroleum. A. being unable to supply the cargo, the owners of the vessel agreed to cancel the charter-party, and seek for another cargo, on A. guaranteeing the vessel a "sum of 9007. gross freight home." The owners procured a cargo whose estimated freight would have amounted to 5567. 14s., but the vessel was lost on its way home:-Held, that the owners were at any rate entitled to recover from A., the difference between the estimated and guaranteed freights, if not the whole freight of 9007.1

And where a ship was disabled at an intermediate port, and by the default of the owner of the cargo, the master was prevented forwarding the cargo to its destination, it was decided that the whole freight was payable.2

A bill of lading in English, of goods to be delivered in a French port, was given by the master of a French vessel lying in the port of New York. The vessel during her voyage suffered injury and was compelled to put into an English port.

1 Carr v. Wallachian Petroleum Co., L. R. 2 C. P. 468.

2 The Soblomsten, L. R. 1 A. & E. 293; 36 L. J. Ad. 5.

The cost of repairs would have exceeded the value of the vessel, and the master therefore gave notice of abandonment, which the underwriters refused to accept, and litigation ensued, pending which the master was, by French law, unable to complete the act of abandonment. The cargo was discharged, warehoused and various offers were made to the master as to payment of freight, and amongst them to deposit in a bank the whole sum claimed and sign the usual average bond; but the master insisted upon payment of the whole freight, without any deductions. The litigation in France having ended-Held, in a suit brought immediately afterwards by the assignee of the bill of lading (an English subject) against the master for breach of contract and breach of duty, that the master was entitled to a reasonable time within which to carry or tranship the goods, and that until that time had elapsed, he could not be called upon to deliver, except upon payment of full freight; that the delay occasioned by the litigation in France must be considered as reasonable. That the offer to pay into a bank the whole freight was not equivalent to an offer to pay the freight. And that, under the circumstances, the master had not been guilty of a breach of duty or contract.1

Some of the more ancient writers on maritime law, mention the case of goods put on board a ship without the knowlege or consent of the master or owners. It is evident that in such a case no con

The Bahia, 12 L. T. N. S. 145.