SECTION III.

OF THE DELIVERY OF THE GOODS.

If freight is payable by the ton, or bale, or package, or barrel, severally, or where different parts of the cargo are shipped upon distinct and separate terms as to freight, the consignee must pay for what is delivered. If an entire freight is payable for an entire cargo, and a part is delivered and accepted, the freight of that part must be paid.2 But the consignee may refuse to receive the part offered to him, and then the consignor is not bound to pay a pro rata freight. Where what is shipped increases on the voyage, it has been held that freight is

to his whole freight; and the other, if there be a refusal to forward them, is entitled to have them without paying any freight at all."

In Mackrell v. Simond, 2 Chitty, 666, 673, Lord Mansfield says: "The safety of the ship is the mother of freight." And Mr. Justice Maule, in Crozier v. Smith, 1 Man. & G. 407, 415, says: "Freight is generally payable only on the arrival of the vessel, when the merchant receives the goods on which it is charged." See also, Osgood v. Groning, 2 Camp. 466; Barker v. Cheriot, 2 Johns. 352; Armroyd v. Union Ins. Co. 3 Binn. 437; Union Ins. Co. v. Lenox, 1 Johns. Cas. 377, 383; Sampayo v. Salter, 1 Mason, 43; Caze v. Baltimore Ins. Co. 7 Cranch, 358; Vlierboom v. Chapman, 13 M. & W. 230.

1 Christy v. Row, 1 Taunt. 300; Ritchie v. Atkinson, 10 East, 295. See also, M'Gaw v. Ocean Ins. Co. 23 Pick. 405, 414; Frith v. Barker, 2 Johns. 327.

2 Hinsdell v. Weed, 5 Denio, 172.

8 Sayward v. Stevens, 3 Gray, 97. In this case the owners of the vessel agreed to transport for a gross sum, a number of miscellaneous goods, which bore no proportion to each other in size or in cost of transportation. Part were lost on the voyage, and the consignee refused to accept the residue. The court held that the contract being entire, the consignor was not liable to pay either an entire or a pro rata freight. The goods which arrived were sold by the captain, as no one appeared to claim them. After the decision in 3 Gray, 97, the owner of the goods brought an action for money had and received, to recover the proceeds. The defendants claimed to deduct the freight due for the goods, on the ground that the action for money had and received was an affirmance of the contract. But the court held that freight should not be deducted. But, as when the goods were sold there was supposed to be more than there actually was, and the agent of the owner of the ship repaid to the purchaser the sum of seventy-five dollars, the court held that this should be deducted. Stevens . Sayward, Sup. Jud. Ct. Mass. March Term, 1857.

due only for what is shipped. If the owner delivers a part of the goods and pays for the rest, he is entitled to his freight on the whole, provided the consignee receives the part delivered.2 If the goods are accepted and freight is demanded, the shipper may have his claim against the ship-owner, by way of offset or otherwise, for the value of the goods not delivered. And the ship-owner must indemnify the shipper for their full value, or for the injury they have sustained, unless he can show that they were lost or injured from a cause for which he is not responsible; and the burden of proof is on the ship-owner to show that the loss was occasioned by such a peril. But if this is clearly

1 In a recent case in the Court of Exchequer in England, 2,664 quarters of corn were shipped on board a vessel to be carried from Odessa to Gloucester. The bills of lading were in the usual form, with the clause "quantity and quality unknown," freight payable at a certain rate per quarter On the arrival of the vessel, a portion of the corn having become heated and damaged, the bulk was found to have increased to 2,785 quarters. The court held that freight was payable for the quantity shipped, and not for that delivered. Gibson v. Sturge, 10 Exch. 622, 29 Eng. L. & Eq. 460. 2 Hammond v. McClures, 1 Bay, 101. 3 Edwards v. Todd, 1 Scam. 462.

See also cases cited post, ch. 7, § 4, n.

4"After the damage to the goods, therefore, has been established, the burden lies upon the respondents to show, that it was occasioned by one of the perils from which they were exempted by the bill of lading." Per Nelson, J., in Clark v. Barnwell, 12 How. 272, 280. See also, Forward v. Pittard, 1 T. R. 27; Riley v. Horne, 5 Bing. 217; Hastings v. Pepper, 11 Pick. 41; Colt v. M'Mechen, 6 Johns. 160; The Huntress, Daveis, 82; Bell v. Reed, 4 Binn. 127; Clark v. Spence, 10 Watts, 335; Murphy v. Staton, 3 Munf. 239; Ewart v. Street, 2 Bailey, 157; Smyrl v. Niolon, Id. 421; King v. Shepherd, 3 Story, 349; Turney v. Wilson, 7 Yerg. 340; Whitesides v. Russell, 8 Watts & S. 44; Dunseth v. Wade, 2 Scam. 285; Atwood v. Reliance Transp. Co. 9 Watts, 87; McIntosh v. Gastenhofer, 2 Rob. La. 403; Price v. Ship Uriel, 10 La. Ann. 413; Whitney v. Gauche, 11 La. Ann. 432; Ship Rappahannock v. Woodruff, 11 La. Ann. 698; Grieff v. Switzer, 11 La. Ann. 324; Bissell v. Price, 16 Ill. 408; Alden v. Pearson, 3 Gray, 342, 348; Graham v. Davis, 4 Ohio State, 362. In the case of Baker v. Brinson, 9 Rich. 201, the bill of lading contained the clause, “ rust and breakage are excepted." The articles transported were stoves, one of which was found to be broken on arrival. Held, that the exception included only such breakage as care and diligence could not avoid, and that the burden was on the carrier to show that there had been no negligence on his part. In the case of The Ship Martha, Olcott, Adm. 140, a quantity of sheet iron was found on delivery to be stained and rusted by wet. It was proved that the iron was well stowed, that the ship came in tight and dry, that the iron was taken on board in dry weather, and not exposed to the access of water. But the court held that this was not enough, for the burden was on the ship to show that the damage existed when the cargo was laden on board. See also, Zerega v. Poppe, Abbott, Adm. 397. But in Merriman v. Brig May Queen, 1 Newb. Adm. 464, the court was of the opinion that a special contract in the bill of

shown to be the case, then the shipper is bound to show that the loss could have been prevented by the exercise of reasonable care and skill on the part of the carrier. And if he pays to the shipper the full value of the goods, he may deduct from it the freight which would have been payable to him, as otherwise the shipper would be more than indemnified.2

But the question of the entirety of the contract arises far more frequently when the goods are not delivered at the end of the voyage, or, in other words, when the whole of the voyage is not completed. We have already seen that the ship-owner has a lien on the goods for his freight; that is, he may retain them until the freight be paid; but if he retain them he can bring no action for payment of the freight. For the rule is this: there can be no action for freight unless delivery is either made, or prevented from being made, by the act or fault of the shipper or consignee. It has been held, however, that if the goods are

lading in relation to breakage, would, if valid in other respects, throw the burden of proof on the shipper.

1 It was said in Clark v. Barnwell, 12 How. 272, 280, that if the ship-owner can prove that the loss was occasioned by a peril excepted against, the shipper may still show that the loss might have been avoided by the exercise of reasonable skill and attention on the part of the carrier, but in such a case the burden of proving this would be on the shipper. And this was so decided in Hunt v. Propeller Cleveland, 1 Newb. Adm. 221, 6 McLean, C. C. 76.

2 Roccus, note 81, cited by Ld. Mansfield in Luke v. Lyde, 2 Burr. 882, 889; Knox v. The Ninetta, Crabbe, 534, 544; Arthur v. Schooner Cassius, 2 Story, 81. It was held in the case of Ship Panama, Olcott, Adm. 343, 363, that where freight was paid in advance, and the goods were not delivered, the owner had a lien on the ship for the freight, and the value of the goods. But this is certainly inconsistent with the cases above cited, and with the subsequent case, decided by the same learned judge, of Thatcher v. McCulloh, Olcott, Adm. 365. See also, The Joshua Barker, Abbott, Adm. 215; Bazin v. Richardson, U. S. C. C. Penn. Dist. 1857, 20 Law Reporter, 129, 5 Am. Law Reg. 459.

See ante, p. 148, note 3.

* In Bradstreet v. Baldwin, 11 Mass. 229, the cargo was seized by the government for the default of the shipper. The court held, that, "if there was evidence of a readiness on the part of the plaintiffs to deliver the cargo to the defendant, and the actual delivery and discharge of it had been prevented by the neglect of the defendant to receive it; or if the delivery was intercepted by an attachment, or seizure for a default of the defendant, the plaintiffs would be as well entitled upon this evidence, as they would be on proving an actual discharge and delivery of the cargo." In Clendaniel *. Tuckerman, 17 Barb. 184, the vessel arrived at her port of destination, and offered to deliver her cargo. The consignee was not ready to receive it. The vessel waited several days, and during the delay was capsized without any fault on the part of the

tendered to the consignee at the proper end of the voyage, and the consignee is unable to receive them by reason of the action or prohibition of government, the whole freight is still earned and due; for here, the ship-owner has done all that he was bound to do. Not so, however, if the ship is prevented from arriving at the port by a blockade, or any similar cause, for then the voyage is not finished in fact, nor can it be certain that it would have been finished and delivery made had there been no obstruction of this kind.2 A usage to receive goods at the quarantine ground is admissible as showing a compliance with the engagement to deliver at the port. When a cargo is shipped to a foreign country and no particular port of delivery is mentioned, the presumption is that the general port of delivery of such cargoes in that country is the one meant.4

The general rule applicable to carriers and other persons contracting to deliver goods, is that a personal delivery is necessary.5 But this rule does not apply to the case of ships, the usages of

master and crew, and part of the coal was lost. Held, that full freight was earned. See also, Brown v. Ralston, 9 Leigh, 532.

1 Morgan v. Ins. Co. of North America, 4 Dall. 455; Bradstreet v. Heron, Abbott, Adm. 209. It has also been held that where the delivery of the goods is prevented by their wrongful seizure by custom-house officers, the ship-owners will not be excused, nor their contract with the shippers dissolved. Gosling v. Higgins, 1 Camp. 451; Spence v. Chodwick, 10 Q. B. 517. See also, Evans v. Hutton, 4 Man. & G. 954. In Brooks v. Minturn, 1 Cal. 481, it was held that if a seizure by the revenue officers was illegal, full freight would be due, so if legal and occasioned by the fault of the consignee, but if caused by the fault of the ship-owner or his agents, though full freight would be due, if the goods were finally delivered, the consignee might deduct any damages which he had suffered by the detention.

2 Hadley v. Clarke, 8 T. R. 259; Stoughton v. Rappalo, 3 S. & R. 559; Scott v. Libby, 2 Johns. 336; Lorillard v. Palmer, 15 Johns. 14, 20; Palmer v. Lorillard, 16 Johns. 348; Burrill v. Cleeman, 17 Johns. 72; Richardson v. Maine Ins. Co. 6 Mass. 102; Baylies v. Fettyplace, 7 Mass. 325. In Sims v. Howard, 40 Maine, 276, goods were shipped from Philadelphia to Bangor. The bill of lading provided that if the river should be closed with ice, the cargo should be received at Frankfort, or as near as the ice would permit. On arrival at F. the river was full of ice, and the captain refused to go further, but the vessel was taken to B. by the owners of part of the cargo, and as soon as this with a part of the goods in question was landed, the vessel was towed back to prevent her being frozen in. The rest of the goods were discharged and stored at F. Held, that freight was due.

Bradstreet v. Heron, Abbott, Adm. 209.

4 Smith v. Davenport, 34 Maine, 520.

And in Wardell v. Mourillyan, 2 Esp. 693, it was held that a delivery of goods by a hoyman on the wharf to which he usually plied was not sufficient.

trade having constituted a delivery on the wharf with notice to the consignee sufficient. The delivery must be on a wharf which is suitable for the cargo which is to be placed upon it; if then the goods are injured in consequence of the insufficiency of the wharf, the vessel is liable as if no delivery had taken place. And although the liability of the carrier may cease by the goods being put on the wharf, yet if they are taken on board again his liability revives.3

The goods must not be piled on the wharf promiscuously with those of other consignees, but the master must, as far as possible, separate the different consignments, so as to render them accessible to their respective owners. In all cases the master is required to give notice to the consignee of the arrival of the vessel, and of his readiness to discharge the cargo; and knowl

5

1 In Hyde v. Trent & Mersey Nav. Co. 5 T. R. 389, which was a case of carriage by land, Buller, J., said: "When goods are brought here from foreign countries, they are brought under a bill of lading, which is merely an undertaking to carry from port to port. A ship trading from one port to another has not the means of carrying the goods on land, and according to the established course of trade, a delivery on the usual wharf is such a delivery as will discharge the carrier." The former part of this reason does not appear to be perfectly satisfactory, because a bill of lading is not merely "an undertaking to carry from port to port," but it is also a contract to deliver the goods to a specified person. The general question of delivery was much discussed in the case of Cope v. Cordova, 1 Rawle, 203, and the usages and customs of several foreign ports in relation thereto set forth at length. In this case the plaintiff was the consignee of ten crates of merchandise. As soon as the vessel was ready to unload, he sent a porter to receive them, with a permit and a list of the articles, and with authority to receive them, etc. On the twenty-second of the month one or more crates were delivered to the porter, and one or more on the two following days. The porter did not attend during the whole of these days, but called repeatedly every day, and took away such as were delivered. One of the crates was landed on the twenty-third, but was not received by the porter, and it was not known what had become of it. It was held that the defendant was not liable.

The Bark Majestic, U. S. Dist. Ct., New York, 10 Legal Observer, 100. In this case a cargo of iron was unloaded on a spile dock, the master having notice that it was not strong enough to sustain it, and the vessel was held liable for the injury sustained by the wharf breaking through.

14.

& The Huntress, Daveis, 82.

The Ship Middlesex, U. S. C. C. Mass. Dist., May T. 1857, 21 Law Reporter,

5 This doctrine is laid down in the early case of Golden v. Manning, 3 Wilson, 429, 2 Wm. Bl. 916, as follows: "There can be no doubt but carriers are obliged to send notice to persons to whom goods are directed, of the arrival of those goods within a reasonable time, and must take special care that the goods be delivered to the right. person." See also, The Peytona, Ware, 2d ed. 541, 2 Curtis, C. C. 21; Salmon Falls