With regard to cargo, the liability of owner and master commences with its delivery. If it is delivered in a usual and customary manner, that is a sufficient delivery. Where the vessel is lying at a wharf, it is usual to deliver the goods on the wharf and notify the master or officer in command of the fact. Any accident happening to goods thus delivered, in putting them on board, will fall upon the carrier.

The manner of taking on board, and the commencement of the carrier's liability, depend upon the custom of the particular place. Thus, if goods are to be conveyed to the ship by lighters, and it is the custom, or agreed, that the master is to take them from the quay or beach, then his liability commences at that place; but if the owners are to deliver the goods at the ship's side, then his liability commences upon the reception of them in the same manner as when the vessel loads at the wharf.

The cargo must be taken on board with care and skill and stowed under deck. If stowed upon deck without consent of the shipper or sanction of custom, it will be at the risk of ship-owner and master, who will be liable for any loss or injury which may happen from whatever cause, notwithstanding an exception exists in a bill of lading as to dangers of the seas.

A master should be careful not to take on board any contraband or unlawful goods; for the other goods in the ship may thereby be liable to forfeiture or detention and he made responsible. And if he takes on board any false or suspicious papers, he may thereby subject his vessel to capture or detention and himself to damages.

*

Where the master is also appointed consignee of cargo, his acts in relation to it are severally to be referred to the different capacities in which he is acting. The general rule is, that during the voyage his acts are to be referred to his capacity as master; but after the cargo

* Abbott on Shipping, 211.

has arrived at its destination, the master, if he be also consignee, is to be considered as acting in that relation only.*

The master, from being the general agent and representative of the owner of the vessel, is entitled to receive freights, and a payment to him will discharge the goods, and those who may be liable for the freight, unless notice should be given by the owner, or unless there be some stipulation to the contrary in a contract.

There are cases where full freight is due notwithstanding the non-arrival of the goods at the port of destination. Thus, a merchant shipper cannot avail himself of his own default to escape the payment of freight; as, if the goods be seized or detained at an intermediate port for his illegal conduct or wrongful act; or if, at such intermediate port, he voluntarily insists upon receiving, and does receive his goods, the carrying ship being ready and able to carry them to their destination.

Where goods have been thrown over board for general benefit, or so used as to make the loss of them a subject of general average, the owner of the goods is bound to pay full freight; because the payment of general average is the substitution for delivery, and subjects the owner to the payment. But, in all other cases, the shipper has a right to insist on the delivery of the goods as a condition preceding the payment of freight. It is no answer to say the ship-owner acted in good faith, and the sale was for his benefit. He has commissioned no one to judge for him on that subject. He may prefer to have the goods in a damaged state. It is his right, and cannot be withheld from him without a forfeiture of the demand for freight.‡

The shippers are bound to pay the full freight for the

*Earl v. Rowcroft, 8 East's Reports, 126.

Halwerson v. Cole, 1 Spears' (U.S.) Reports, 321; but see (quoted there)

Hunter v. Princeps, 10 East's Reports, 378.

Ibid.

voyage, if the cargo is carried to the port of destination, and specially remains, notwithstanding at its arrival it is, by reason of damp, utterly ruined and worthless.* But the general rule is, that no freight is due for goods which positively perished by the perils of the seas in the course of the voyage. Thus, fifty hogsheads of sugar were shipped on freight. They were properly stowed, but during the voyage the ship leaked, owing to tempestuous weather, by means of which the sugar was washed out; and on arrival at the port of destination, the hogsheads were empty, and some of them fell to pieces. It was held by the court that no freight was due. The sugar was as effectually destroyed as if it had at once been swept into the sea and gone to the bottom. Bringing into port the empty hogsheads was not bringing the hogsheads of sugar which the carrier had undertaken to do.†

Although the general rule is completion and full freight, yet there may be cases where a proportion of freight only is payable. Thus, if the ship by any disaster is forced. into a port short of the place of destination, and is unable to prosecute and complete the voyage, and the owner of the goods voluntarily accepts them at the port of distress, or at an intermediate port, the law implies a new contract, namely, to pay freight in the proportion of the voyage performed. This is called pro rata freight.

It is believed that if the whole vessel is chartered to take a cargo, at certain specified rates per ton, and a full cargo is not furnished, the owner of the vessel is entitled to freight, not only for the cargo actually put on board, but also for what the vessel could have taken had a full cargo been furnished. This is the American rule. And

* Jordan v. Warren Insurance Company, 1 Story's (Boston, U.S.) Reports, 342, 352; The Nathaniel Hooper, 3 Sumner's (Boston, U.S.) Reports, 554; Caze v. The Baltimore U.S. Company, 7 Cranch's (U.S.) Supreme Court Reports, 358, 362.

† Ibid.

Duffie v. Hayes, 15 Johnson's (New York) Reports, 337; Heckscher v. M Crea, 24 Wendell's (New York) Reports, 304.

also, that if a merchant sends the vessel of another abroad for a cargo to a designated port, and puts none on board, he who has hired the vessel for the voyage must pay empty for full.*

If a ship can be repaired in a reasonable time, and the cargo is not perishable, the master is not bound to tranship, but he may detain the cargo until the repairs are completed, and then prosecute his voyage and earn full freight. If, however, the ship cannot be repaired at all, or not without very great loss of time, the master is at liberty to tranship, and so to earn the whole freight; and in such case the freighter is bound to pay the extra freight for the renewed voyage which the master pays for the hire of the vessel which he procures; that is to say, the owner of the goods is not responsible for the old and the new freight united, but for the excess of the whole freight over what the old freight would have been if the first ship had been able to carry on the goods.†

As ships are liable to accidents in the course of the voyage, by which repairs may become necessary, it would seem that if the hire by charter-party be from a certain day, for a certain number of months, and so much longer as the vessel shall be employed by the charterers, the freight does not cease to accrue during time exhausted in making repairs; at least, if the vessel was sufficient at the outset of the voyage, and there be no neglect or unreasonable delay on the part of the owner in having her repaired. And it has been decided in America that if a ship is chartered at a certain sum per month, and in the course of the voyage is seized and detained by a hostile

Giles v. Brig Cynthia, 1 Peter's (Pennsylvania) Reports, 203, 207; Kleine v. Catara, Gullison's Reports, 61.

The Gratitudine, 3 C. Robinson's Adm. Reports, 240; Miller v. Fletcher, 1 Douglas's Reports, 231; Lake v. Lyde, 2 Burroughs's Reports, 889; Shipton v. Thornton, 9 Adolphus and Ellis's Reports, 314.

Havelock v. Geddes, 10 East's Reports, 555; Ripley v. Scaife, 5 Barnwell and Cresswell's Reports, 167.

force, and afterwards released, and performs her voyage, the freight for the time of detention is due, and payable by the hirer, as well as for the other periods of the voyage.

It is universally conceded that the master of a merchant ship, on his arrival at the port of delivery, has a right to retain the goods until the freight is paid by the consignee. But in order to the exercise of this right, it is necessary not only that the goods should have arrived at the place of their destination, but that they must be taken out of the vessel, and the master must be ready to deliver them on payment, or tender of the freight. The delivery of the cargo is, by the maritime law, a condition which must precede the right to freight, and the right to detain for non-payment; and the reason is, that the merchant may have an opportunity to examine the goods before he makes himself liable at all events for the freight.†

The master may detain any part of the merchandise for the freight of all that is consigned to the same person. Hence, if the master, in such case, makes a delivery of part of the goods to the consignee, he may retain the residue even against a purchaser, until payment of the freight of the whole. But if the goods are sold to dif ferent persons by the consignee, and part is delivered, the master has not a lien upon the residue so as to compel one purchaser to pay freight for what has been delivered to another purchaser, but only for what has been purchased by himself.‡

A person once a master of a vessel, will be deemed to continue in that character until displaced by some overt act or declaration of the owners.§

2. MATE'S DUTY.

It may not be amiss, shortly, to state the authority and office of first mate.

*Spafford v. Dodge, 14 Massachusetts Reports, 66.

+ Certain Logs of Mahogany, 2 Sumner's (Massachusetts) Reports, 589. Abbott on Shipping, 377, note, 8th edition.

§ Schooner Tribune, 3 Sumner's (U.S.) Reports, 220.