cargo at Monte Video; such freight, pilotage, and port-charges to be paid on the arrival and discharge of the ship at her destined port in Great Britain. Upon this contract, an action was brought against the freighter, and it was alleged, on the part of the owner, that the ship took in such goods at Portsmouth as the freighter thought fit to lade, and then proceeded on the voyage, and touched at the coast of Africa as required, and, in the prosecution of the outward voyage, was, before her arrival at Monte Video, without the fault of the owner, master, or crew, by persons unknown wrongfully seized and sent to London, and there detained for a considerable time, but afterwards liberated and restored to him: that he then made the necessary repairs, and having properly fitted, victualled, and manned the ship, gave notice thereof to the freighter, and offered to prosecute and complete the voyage, and required from him the necessary directions for that purpose, but that the freighter refused to give any directions, or to permit the ship to pursue the voyage, and wholly renounced the charter-party, and discharged the owner from further prosecuting the voyage. It was further alleged that the ship had been employed in the voyage twelve months, and that the freight thereof amounted to 8,040.; that she would have been employed for twelve months more, if the freighter would have permitted, and the freight thereof would have amounted to another sum of 8,040l., and that two third parts of the pilotage and port-charges during the voyage amounted to 50%; and the complaint was, that the freighter, who had been requested to pay these sums, had refused to do so. So that by the form of the action the owner claimed to recover the freight, &c., as due, and not to recover damages against the freighter for refusing to allow him to prosecute the voyage (g). And on behalf of the owner it was contended, that as he had done all in his power toward the completion of the voyage, and the further prosecution and completion of it were prevented by the freighter, he had acquired a right to the sums demanded as freight, &c., as fully as if the voyage had been performed, and the ship had arrived and been discharged at her destined port. But the Court, adverting to the particular terms of the contract, whereby the freight, &c., were made payable for the arrival and discharge of the ship at her destined port in Great Britain, and considering that the efforts of the owner could not possibly insure this event, which might be defeated by the act of God, and various accidents, to which marine adventurers are subject, held this not to be one of those cases in which an offer to perform an act, if refused by the party to be charged by the performance, is equivalent to performance itself, and consequently that the owner was not entitled to recover the freight, &c., which he claimed in this action (h).

(g) It is not clear that the charter-party contained any covenant on the part of the freighter that would have furnished a ground for such an action för damages.

(h) Smith v. Wilson, 8 East, 437. It was an action of covenant; the facts stated in the text were contained in the plaintiff's

declaration. The defendant pleaded some special pleas to which the plaintiff demurred. Upon the argument, the Court disregarded the pleas, and gave judgment against the plaintiff upon the declaration. See also the case of Crozier v. Smith, 1 Scott, New R. 338.

Also, in the case of a ship which arrived with a cargo at Naples, where the cargo was seized by the government, and so the master was prevented from delivering it to the consignee of the merchant, it was held that the merchant was not liable to pay the outward freight (¿). Again, where by charter-party a ship was hired to receive a cargo in London, and proceed to such places as the merchant should direct, and there unload, reload, and return from thence to London, and it was agreed that the ship should continue in the service six calendar months at least, and for such further time as would be necessary to complete the voyage, and the merchant covenanted to pay to the owner for the use of the ship a certain sum per ton per month, during the term of six calendar months at the least, and so in proportion for a less time than a whole month, and at the like rate for such further time, if any, and until her final discharge in London, or up to the day of her being lost, captured, or last seen or heard of, such freight to be paid to the master in cash, in manner following-viz., so much as might be earned at the time of the arrival of the ship at the first destined port abroad, to be paid within ten days after arrival at such port, and before the delivery of the cargo, and at the expiration of every month after that period the freight to be paid up from time to time, during the continuance of the ship in the service, and the residue or balance on the day the ship should be finally discharged from the service; and that in default of payment of any part, the master might retain and sell so much of the cargo as might be sufficient to cover the amount. And there was a proviso in the charter-party, that the merchant might at any time during the voyage purchase the ship for a specified sum, upon paying the freight that might be earned up to the time of such purchase. And, in fact, it happened that the ship was lost by perils of the sea before her arrival at her first destined port. It was decided that nothing was payable (k).

In all these cases the Court thought, that, according to the true construction of the contract, the payment was made to depend upon an event which never happened.

11. The Courts of Admiralty, where the question of freight comes

(i) Storer v. Gordon and Others, 3 M. & S. 308.

*(k) Gibbon v. Mendez, 2 B. & A. 17. See also Crozier v. Smith, 1 Scott, N. R. 338. By a charter-party, the vessel was to sail from London with a cargo for Kingston, or any other port in Jamaica; and, having discharged the same, receive on board a cargo from thence, or from a port on the Spanish Main if required, and deliver the same at a port in the United Kingdom-freight to be paid, 2507. in ten days after sailing from Gravesend, and 7507. more in two months after a right delivery of the homeward cargo at her port of discharge in the United Kingdom, provided she should be required to proceed to one port only in Jamaica, and 257. more should she be required to go to two or more ports in that island; and in case

the vessel should be ordered to the Spanish Main, 47. per day was to be paid for every day after the twenty-sixth day after her arrival at Jamaica, until despatched from her loading port. Demurrage, 1007. per month, or in proportion for a less period, payable on settlement of the hire of the vessel. The vessel sailed from London, and discharged a portion of her outward cargo at Kingston, and the residue at another port in Jamaica, and sailed thence to a port in the Spanish Main to receive a homeward cargo, and there remained one-hundred and thirty-nine days beyond the stipulated twenty-five days. Held, that the 41. per day was not payable until two months after the delivery of the homeward cargo at the ship's port of discharge in the United Kingdom.*

collaterally before them in the case of captured ships ordered to be restore d, will exercisea larger equity than belongs to a Court of Law; without assuming to make a new contract between the parties, they presume their consent to such a contract as equitably belongs to a new state of things, not originally within their contemplation. Accordingly, where a ship having been captured at the very mouth of the port to which she was destined, was afterwards retaken and sold for salvage, but the ship and cargo, upon a suit in the Admiralty, were ordered to be restored, the Court directed a moiety of the freight to be paid, though the merchant insisted that none was due, because the whole voyage had not been performed; while the owner claimed the whole freight, because he had reached the mouth of the river (1).

If in a time of war a neutral vessel, carrying goods belonging to the subjects of one of the belligerent powers, be taken by those of the other (in which case the goods are lawful prize, but the ship is to be restored), the captor pays the whole freight, because he represents the enemy, by possessing himself of the enemy's goods jure belli; and although the whole freight has not been earned by the completion of the voyage, yet, as a captor, by his act of seizure, has prevented its completion, his seizure shall operate to the same effect as an actual delivery of the goods to the consignee, and shall subject him to the payment of the full freight (m). This, however, is to be understood of such goods only as a neutral vessel may convey by the law of nations, and of a trade ordinarily allowed to the neutral nation by the government to whose subjects the goods belong. If the goods are contraband according to the law of nations, such as naval stores, &c., no freight is to be paid by the captor (n); and this, whether the master know the quality of the goods or not; for, in time of war, he is bound to know the contents of his cargo, and cannot be permitted to aver that he was ignorant of them (o);-nor is any freight to be paid by the captor if the ship is employed in bringing the produce of the colony of a belligerent power to the mother-country (p), or in the coasting trade between one port and another of the same country (q), or in carrying the goods, even of neutrals, directly from the mothercountry to its colony (r), or from one hostile nation to the colony of another hostile nation in alliance with it (s), if these trades were not, in time of peace, open to the neutral nation whose ship is so employed, -because, in all these cases, it is evident that the trade is opened in the time of war merely for the convenience of the belligerent power, and to relieve that power from a part of the difficulties occasioned by

(The Friends, 1 Edw. Ad. Rep. 186. (m) The Copenhagen, Mening, 1 Rob. Ad. Rep. 289. The Bremen Flugge, 4 Rob. 91. The Vrow Henrica, 4 Rob. 347. And the amount of freight is usually measured by the terms of the charterparty but see the Twilling Riget, 5 Rob. 85.

(n) The Mercurius, Meincke, 1 Rob. Ad. Rep. 288.

(0) The Oster Risoer, Jurgenson, 4 Rob. Ad. Rep. 199.

(p) The Rebecca, Moore, 2 Rob. Ad. Rep. 101. See also the American, Sherborne, id. vol. 3, p. 36.

(g) The Emanuel, Soderstrom, 1 Rob. Ad. Rep. 296, and the Mercurius there cited.

(r) The Immanuel, Eysenberg, 2 Rob. Ad. Rep. 186; and the Anne, Lord, id. vol. 3, p. 91, note (a); and the Nancy, Joy, id. p. 82.

(s) The Rose, Young, 2 Rob. Ad. Rep. 206.

the war; and the neutral vessel so employed thereby furnishes direct assistance to the belligerent power. But as trade from a port of one nation to a port of another is in general open to all countries, freight is to be paid to the owners of a neutral ship employed in carrying the goods of an enemy from a port of one nation hostile to the captors, to a port of another nation equally hostile (t).

Again, if a ship be taken and retaken, and carried by the re-captors into a port short of the place of destination, and the ship be there restored, before the cargo is restored, either by reason of a delay on the part of the merchant to claim the cargo, or of doubt or litigation upon his right to restitution, the Court of Admiralty does not require the ship to wait the doubtful event of the claim of the cargo in order to convey it to the place of destination, but gives the owners their whole freight, subject only to the deduction of salvage upon the amount of it (u). And this with great justice; for the capture is not imputable to the master; the delay of obtaining restitution of the cargo is imputable to the merchant.

If the ship of an enemy, carrying the goods of a neutral, be taken, and the captor conduct the ship and cargo to the place of destination, and so fulfil the contract of the master, the captor is entitled to receive the freight of the goods upon their restitution to the merchant; but he is not entitled to this if he take the ship to a different port, and do not perform the original voyage (x)—not even if the proprietor of the cargo afterwards disposed of it at the place to which the ship may be carried (y).

The receipt of freight by the obligee of a bottomry bond is in law a receipt of it by the shipowner, by whose master the bond was given to raise money for necessary repairs (2).

(t) The Wilhelmina, Carlson, 2 Rob. Ad. Rep. 101, in notis. The Hiram, 3 Rob. 180.

(u) The Race Horse, White, 3 Rob. Ad. Rep. 101; and see the cases cited in the note at the end of that report. See also the Hoffnung, Rask, 6 Rob. Ad. Rep. 231.

(a) The Fortuna, Tadsen, 4 Rob. Ad. Rep. 278, and the case of the Vreyheid,

and also Bynkershoek, Quest. Jur. Pub. lib. 1, c. 13, there cited. This is different from the old rule, as laid down in the Consolato del Mare, ch. 173.

(y) Vrow Anna Catherina, Mahts, 6 Rob. Ad. Rep. 269. The Diana, 5 Rob. 71. The Etrusco, 5 Rob. 69. But see the Race Horse, 3 Rob. 101; the Hamilton, ib. 107.

(z) Benson v. Chapman, 8 C. B. 950.

CHAPTER X.

OF GENERAL OR GROSS AVERAGE; AND HEREIN,

(Ss.) 1. Of the Lex Rhodia de Jactu, and the Regulations of Foreign Ordinances respecting Jettison.

2. Of the Losses for which Contribution by general Average shall be made.

3. Of the Jettison of Goods stowed on the Deck of the Ship.

4. Of Ships Stranded and Lost.

5. Of Ships' Expenses in Port of Refuge.

6. Of Goods sold for the Necessities of Ship and Cargo.

7. Of Expenses in Wages and Maintenance of Crew, during the detention of a Ship by order of a Sovereign Power.

8. Of the Expense of Wages and Maintenance of Crew while the Ship is waiting for Convoy.

9. Of the Expense of Healing Mariners wounded in Defence of the Ship.

10. Of Loss by Collision.

11. Remarks.

12. What Articles are to Contribute.

13. Of the Mode of Contribution.

14. How settled, and recovered in case of Dispute.

1. HAVING thus treated of the respective duties of the owner and the merchant, I now proceed to the consideration of a subject which is equally a duty of the one and the other-namely, the General Contribution that is to be made by all parties toward a loss sustained by some for the benefit of all. This contribution is sometimes called by the name of general average, to distinguish it from special or particular average-a very incorrect expression, used to denote every kind of partial loss or damage happening either to the ship or cargo from any cause whatever; and sometimes by the name of gross average, to distinguish it from customary average, mentioned in the bill of lading, which latter species is sometimes called also petty average.

The principle of this general contribution is known to be derived from the ancient law of Rhodes, being adopted into the Digest of Justinian, with an express recognition of its true origin. The wisdom and equity of the rule will do honour to the memory of the state from whose code it has been derived, as long as maritime commerce shall endure. The principle of the rule has been adopted by all commercial nations, but there is no principle of Maritime Law that has been followed by more variations in practice. The modern ordinances of the several continental states of Europe differ from each other in many particulars relating to this general contribution, and the French ordinance establishes a different mode of contribution in different cases. An enumeration of these varieties would furnish