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by the charterers and taken to London in vessels; the ship was subsequently raised and brought to London with a small portion of the cargo still on board. The merchants were held liable to pay the freight of the pepper delivered to and received by them, though greatly damaged by a peril of the
So, where tobacco was saved from shipwreck and accepted by the merchant, he was held liable to pay the freight, although part was so much damaged as to be of no value.2
In Garrett v. Melhuish,3 it was held that freight was payable upon a cargo of bricks which had been crushed up by heavy machinery stowed on top of them.
In Moorsom v. Page, an attempt was made to avoid payment of freight on the damaged outside skins in which packages of hides were contained; but Lord Ellenborough held that there was no ground for exempting them.
If the consignee of goods accepts any benefit by the carriage, he cannot defend himself from the payment on the ground that the goods have been damaged by the master in carrying them, though the damage exceed the amount of the freight.5
Where, by a charter-party, a ship was to load at Colombo or Cochin, from the charterer's agents a full and complete loading, and proceed to Lon
Hotham v. East India Co., cited in Abbott on Sh. 576.
Lutwidge v. Grey, cited in Abbott on Sh. 591; Davidson v. Gwynne, 12 East. 381.
34 Jur. N. S. 943. 4 Camp. 103.
Shields v. Davis, 6 Taunt. 65.
don and discharge there, fire and other dangers of the sea excepted, and a lump sum freight of 5,000l. was to be paid after entire discharge and right delivery of the cargo. Part of the cargo was lost by fire, without any default of the master or crew, and the remainder was delivered in London. It was held, that the shipowner was entitled under the charter-party to the full lump sum freight.'
Where freight is made payable by the contract at a fixed rate, for a fixed period, as at so much per month, week, &c., the general rule is, that freight accrues due at the expiration of each of the periods specified, and continues payable if the ship is detained during the voyage, if such detention does not discontinue the voyage or suspend the contract, and does not proceed from the default of the shipowner.2
If the shipowner is guilty of unreasonable delay he does not thereby lose his right to the freight, or his lien on it; he is only subject to a cross action.3
In such a case, if a ship freighted on time is captured and detained some time, and afterwards recaptured and liberated, and the voyage is then completed, the shipowner may recover freight for the whole period, as if the voyage had never been discontinued, and as if the detention had arisen from contrary winds.1
The stipulation in a charter-party, that freight shall be paid "subject to insurance," means merely,
Merchant Shipping Co. v. Armitage, L. R. 9 Q. B. 99; Robinson v. Knights, L. R. 8 C. P. 465.
Havelock v. Geddes, 10 East. 555; Moorsom v. Greaves, 2 Camp. 627; Ripley v. Scaife, 5 B. & C. 167.
Per Williams, J, in Blasco v. Fletcher, 32 L. J. C. P. 284.
Moorsom v. Greaves, 2 Camp. 627.
Cases in which
it has been held
that freight is to be paid subject to deduction for premiums on insurance; but not that insurance by the owner is a condition precedent to his recovery of freight.1
Although readiness to deliver the goods at the place of destination is, in general, necessary to entitle the shipowner or master to the freight, yet with respect to living animals, whether men or cattle, which may die during the voyage, without fault or neglect on the part of the persons belonging to the ship, it is said, that if there is no express agreement whether the reward is to be paid for lading, or for transporting them, freight is payable as well for the dead as for the living. If the agreement was to pay for lading and undertaking to carry them, their death will not deprive the shipowner or master of the reward. But if the agreement was to pay freight for transporting them, then no freight is due for those that die on the voyage, because as to them the contract is not performed."
If the shipowner fails to carry the goods for the freight is not merchant to the destined port, the freight is not earned.3
If freight is made payable upon the performance of a condition as the right delivery of the cargo at a port named, no freight becomes due until the performance of such condition, unless the consignee dispenses with the performance of such condition,
1 Jackson v. Isaacson, 27 L. J. Ex. 392.
2 McLach, on Sh. 397; Kay on Sh. 297; Abbott on Sh. 534.
or voluntarily accepts the goods at an intermediate place or renders the performance of the condition impossible.
No freight is payable if the owner of the cargo against his will is compelled to take it at an intermediate port.1
In Dickson v. Buchanan' a ship carrying some wire fencing from Liverpool for Brisbane, put into Falmouth as a port of refuge, after a collision; the wire was found to be damaged, and it was given up to the shipper on his undertaking to pay freight for the voyage if he were liable. It was found that most of the wire could only be used as scrap iron, and that, if carried on, it would have rusted to such an extent as to be neither wire nor scrap iron, when it reached Brisbane. The remainder of the wire could be made serviceable by a treatment more costly than the result would be worth, but only for small articles, not as fencing wire. Under these circumstances it was held, that no freight was payable.
So, where a ship was chartered by the defendants for a voyage from Liverpool to Havana, and loaded by them as a general ship, the freight being payable to the master; she went aground on the coast of Ireland, but subsequently she was got off with her cargo, both being damaged. S., who represented the freighters, visited the vessel, and was requested by the master, "to act on behalf of the owners to the
1 The Soblomsten, L. R. 1 A. & E. 293; Hunter ". Prinsep, 10 East. 378; Mulloy v. Backer, 5 East. 316; Liddiard v. Lopes, 10 East. 525; Vlierboom v. Chapman, 13 L. J. Ex. 384.
2 13 Sc. L. R. 401.
best of his judgment and ability." S., caused the cargo to be taken out and sent back to Liverpool in another ship which he himself engaged for that purpose. The ship went to Dublin and was there repaired. When the goods arrived at Liverpool the charterers, on account of their damaged condition, determined to sell them. Before the sale took place, however, the master claimed the entire freight on the goods to the port of destination, or that they should be detained to proceed in his vessel when she was repaired. The defendants refused to accede to this, and procceded to sell the goods. In an action by the master against the defendants for wrongfully preventing him from carrying the goods and earning freight, the jury found, in effect, that the course taken by the charterers was the reasonable one to take, having regard to the interests of all parties concerned and that no freight was payable by them as charterers.1
The mere shipment of the goods may amount to an implied contract on the part of the shipper to pay the shipowner a reasonable rate of freight for the carriage; but where two charter-parties were entered into, each in ignorance of the other, and the bill of lading was capable of being applied to the one charter-party as to the other, it was held, that the bill of lading being ambiguous, was neither a contract nor evidence of a contract to pay freight."
Where the period is fixed at which the freight is to become payable, as at the time of the arrival of