thers, as ballast; and on the 21st of February, 1829, 5996 dry hides and 104 lining hides were laden on board under a bill of lading, by which they were to be delivered in good order and well conditioned at the port of Gibraltar, the dangers of the seas only excepted, unto Messrs. T. P. Echecopar and Co. in the first place, and to Mr. J. M. Hurtado in the second place, or to their assigns, he or they paying freight for the said goods at the rate of 47. 10s. sterling per ton, with primage and average accustomed. The freight of the hides under the *558] bill of lading was 3407.; and the rate *thercin stated, of 47. 10s. per ton, was the usual freight at that time of hides from Buenos Ayres to Gibraltar. On the 28th of February, 1829, Messrs. Larrea Brothers advanced to Captain Weddell the sum of 1071 current dollars for the necessary expenses of the vessel at Buenos Ayres, which sum, at the current rate of exchange upon London, was 667. 3s. 11d. On the same 28th of February, 1829, the Jane sailed for Gibraltar; and shortly after sprung a leak, lost spars and sails and, being otherwise much distressed and damaged, put into Fayal, one of the Azores islands, on the 21st of May, 1829. She was then surveyed by competent persons, and condemned to be sold as unseaworthy and unfit for repair. The cargo, consisting of the coals and the hides, was taken out and landed at Fayal; 1475 hides were found damaged, and in consequence of the damage, and under the directions of the Board of Health at Fayal, 1292 hides were sold as damaged, and 183 were thrown into the sea under the direction of that board as being utterly worthless. The coals were also sold. 120 hides, which were motheaten, were sold by public auction; 200 further hides, which were not damaged, were sold by private contract; and the proceeds of the coals, and of the whole of the damaged and undamaged hides that were sold, except the 2241. 3s. 9d. hereafter mentioned, were applied to defray the necessary charges of unloading, warehousing, clearing and beating, and reloading the cargo. Besides the hides sold, 172 were retained by the British Vice-Consul, for his commission of 47. per cent. on the cargo forwarded.

After payment, in manner aforesaid, of the charges incurred in respect of the cargo up to the 10th of July, 1829, Captain Weddell had in his hands a net balance of 1055 dollars, or 2247. 38. 9d. English money, belonging to the defendants, with which balance, in dollars, he, on or about the 12th of July, sailed in the schooner Swallow for England.

*559]

On the following day the schooner was wrecked off the island of Pico, and Captain Weddell lost the dollars he had with him, as well as all his papers.

Between the 21st of May and the 23d of July, 1829, no vessel had arrived at Fayal, of capacity to carry on the cargo, which Captain Weddell could engage; and before his departure from Fayal he left instructions with the British ViceConsul at that place, to forward the remainder of the hides, being then 4138 in number, to be sent by the earliest opportunity to Gibraltar.

On the next day, the 24th, Captain Weddell sailed again for England; and on the 29th of July the Vice-Consul entered into a charter-party for the schooner Flora, on the part and behalf of the owners of the cargo of hides landed from the brig Jane, to proceed therewith to Gibraltar, or so near thereto as she might safely get, and deliver the same, on being paid freight for the same the sum of 3601. sterling, with primage 5 per cent., the freight to be paid in cash on right delivery of the cargo.

When that agreement of charter-party was made, 4138 hides of the cargo of the ship Jane remained at Fayal, of which 3959 were laden on board the Flora, and the bill of lading signed for the same by Alexander Christie, the master of the said vessel, by which they were to be delivered, in good order and well conditioned, at the aforesaid port of Gibraltar, unto Messrs. J. P. Echecopar in the first place, and Mr. J. M. Hurtado in the second place, or to their assigns, he or they paying freight for the said goods, as per charter-party, 3607. sterling, with 57. per cent. primage.

The remaining 179 hides would also have been *stowed on board the Flora, had it not been for want of proper stowers, who having absconded, the 179 hides were left behind.

[*560

The 3959 hides were duly delivered at Gibraltar to Messrs. J. P. Echecopar and Co., who paid the freight and primage according to the bill of lading, amounting to 3787. on the goods being delivered to them.

The question for the opinion of the Court was, whether the plaintiff was entitled to any and what amount of freight from the defendants. If the Court should be of opinion that the plaintiff was entitled to any freight, and that the excess of such freight beyond the sums paid by the defendants should amount to the verdict, then the verdict was to stand, or the damages were to be reduced on such principle and to such extent as the Court should direct. But if the Court should be of opinion that the plaintiff was entitled to no freight under the circumstances above stated, or to no larger sum than he had already been paid, then a nonsuit was to be entered.

Shee, for the plaintiff. The plaintiff is entitled to the full freight agreed to be paid by the defendants upon delivery of the cargo at Gibraltar, after giving them credit for the sum paid by their agent at Gibraltar for the freight from Fayal. It is objected by the defendants that the delivery of the full cargo at Gibraltar by the ship Jane is a condition precedent to their liability for any freight beyond what was paid in advance at London. But the agreement to deliver at Gibraltar goes only to a part of the consideration for the defendants' engagement to pay; and according to the principle established by Boone ». Eyre, 1 H. Bl. 273; 6 T. R. 573, where *mutual covenants go to the whole of the consideration on both sides, they are mutual and precedent [*561 conditions; but where they go only to a part of the consideration, an action lies for the breach of them, but they are not conditions precedent: 1 Wms. Saund. 320 b, note. Therefore, in Ritchie v. Atkinson, 10 East, 295, where the mister and the freighter of a vessel of 400 tons mutually agreed in writing that the ship, being in every way fitted for the voyage, should, with all convenient speed, proceed to St. Petersburgh, and there load from the freighter's factors a complete cargo of hemp and iron, and proceed therewith to London and deliver the same on being paid freight for hemp 57. per ton, for iron 5s. a ton, &c., one half to be paid on right delivery, the other at three months, it was held that the delivery of a complete cargo was not a condition precedent, but that the master might recover freight for a short cargo at the stipulated rates per ton, the freighter having his remedy in damages for such short delivery.

But the conditions here have been performed in substance, for the contract was not rescinded by the loss of the Jane at Fayal; the captain acted as agent of the owner in procuring the consul to send on the cargo by another ship, with the exception of a few hides the cargo arrived at Gibraltar; and as the owner might have recovered pro ratâ itineris-Luke v. Lyde, 2 Burr. 882, Baillie v. Modigliani, Park on Ins. 90, Lutwidge v. Grey, Abbott on Shipp. 308-on the same principle he may recover for a proportion of the cargo, more especially after acceptance by the defendants. Upon the loss of the first vessel it was the duty of the captain towards his owner, as well as towards the freighters, to procure another ship and carry the cargo to its destination. In Abbott on Shipping it is laid down (p. 240, 5th ed.) that, "if by the [*502 damage done to the ship, or through want of necessary materials, she cannot be repaired at all, or not without very great loss of time, the master is at liberty to procure another ship to transport the cargo to the place of destination. But if his own ship can be repaired he is not bound to send the cargo by another, but may detain it till the repairs are made, and even hypothecate it for the expense of them; that is, supposing it not to be of a perishable nature; if it be of such a nature he ought either to tranship or sell it, according as the one or the other will be most beneficial to the merchant. So if the ship has been wrecked and the cargo saved." And in Hunter v. Prinsep, 10 ̊ East, 394,

Lord Ellenborough says, "If the ship be disabled from completing her voyage, the ship-owner may still entitle himself to the whole freight by forwarding the goods by some other means to the place of destination." The same doctrine is

to be found in Potier, Traité du Fret, 393; Pardessus, Cours de Droits Commerciaux, vol. 3, p. 77. Story's edition of Abbott on Shipping. Cooke v. Jennings, 7 T. R. 381; Bright v. Cooper, 1 Brownlow, 21; and Gibbon v. Mendez, 2 B. &. Ald. 17, which may be cited for the defendants, turned on the particular language of the contract in each case.

The captain, therefore, having in the performance of his duty to the owner caused the great bulk of the cargo to arrive at its destination pursuant to the charter-party, the defendants must pay the stipulated freight, towards which the sum paid by their agent at Gibralter on behalf of the owner of the Jane for the freight from Fayal may be allowed in account.

*Spankie, Serjt., for the defendants.

*563] The delivery of the entire cargo, by the Jane at Gibraltar, was a condition precedent to the defendants' being liable to any payment beyond the 2007. advanced in London. If the ship had been cast away on the outward voyage, the defendants would lose that 2007.; if she were cast away before reaching Gibraltar, the plaintiff lost his claim to any further freight: that is the intention of the parties to be collected from this instrument: for the freight is not calculated by the time, but at a fixed sum for the entire voyage, and if the voyage be not performed the owner has no claim. In Ritchie v. Atkinson the payment was to be at a certain rate pro tanto; and not by one entire sum for the complete cargo. And Lord Ellenborough takes the distinction: "Where, as in Smith v. Wilson, 8 East, 437, the freight is made payable upon an indivisible condition, such, as in that case, the arrival of the ship with her cargo at her destined port of discharge, such arrival, &c., must be a condition precedent because it is incapable of being apportioned: but here the delivery of the cargo is in its nature divisible; and, therefore, I think it is not a condition precedent; but the plaintiff is entitled to recover freight in proportion to the extent of such delivery, leaving the defendant to his remedy in damages for the short delivery." Bayley, J. says, "In Bright v. Cowper an entire sum was to be paid; and, therefore, unless the plaintiff was entitled to recover the whole, he could not recover any part. Unless, therefore, there was a performance of the whole for which that entire sum was to be paid, which there was not, he could recover nothing. But there is nothing here to shew that it was the intention of the *564] parties, that the delivery of a complete *cargo should be a condition precedent to the recovery of any freight actually earned."

So in Cook v. Jennings, Lord Kenyon says, "By the terms of this agreement the defendant engaged to pay so much on the delivery of the goods at Liverpool, one fourth in cash at her arrival, and the remainder by an acceptance at four months; but the goods never arrived: then at what time were those bills to be dated? We do not sit here to make, but to enforce contracts; and the question put to us is, whether the freight is to be paid under this contract, though the ship never arrived, but was lost before her arrival at Liverpool? upon which I cannot bring my mind to doubt. The case of Luke v. Lyde is very distinguishable from the present, that being the case of a general assumpsit for the freight of goods, in which Lord Mansfield states the marine law on this subject. But what has the case of an implied contract to do with an express contract? Lord Coke says, expressum facit cessare tacitum. Here the parties are bound by a precise agreement. Then it is suggested, that we ought not to give effect to this contract, because it is unreasonable; but we are to decide according to the contract of the parties; and the law says, that if A. covenant to enfeoff B., A. is not released from his covenant, though B. will not accept livery of seisin unless the act be frustrated by the act of the covenantee. It is not necessary now to determine whether or not the plaintiff might not have brought an action of assumpsit; it will be time enough to decide that case

whenever the question arises. But here the question is, whether or not he can enforce payment of the money under this contract, not having carried the goods to Liverpool, and the defendant having only undertaken to pay on their delivery at Liverpool; in answer to this action the defendant has a right to say, non hæc in fædera veni."

[*565

*And Lawrence, J.,-" He is not entitled to the whole freight unless he performs the whole voyage, except in cases where the owner of the goods prevents him; nor is he entitled pro rata unless under a new agreement.” In Abbott on Shipping, chap. 7, it is laid down,—“The contract for the conveyance of merchandise is in its nature an entire contract; and unless it be completely performed by the delivery of the goods at the place of destination, the merchant will in general derive no benefit from the time and labour expended in a partial conveyance, and consequently be subject to no payment whatever, although the ship may have been hired by the month or week."-" In the case of a general ship, or of a ship chartered for freight to be paid according to the quantity of the goods, there can be no doubt that freight is due for so much as shall be delivered, the contract in these cases being distinct, or at least divisible in its own nature. But suppose a ship chartered at a specific sum for the voyage, without relation to the quantity of the goods (in which case the contract, as observed by Lord Chancellor Hardwick, (see Paul v. Birch, 2 Atk. 621,) is more properly a contract for the use of the ship, than for the conveyance of the merchandise), should lose part of her cargo by a peril of the sea, but convey the residue to the place of destination. In this case I do not find any authority for apportioning the freight, and it seems to have been the opinion of Malyne that nothing would be due; and the case of Bright v. Cowper, which will be mentioned hereafter, may be considered as an authority in support of that opinion. But probably, if the question should arise again, the determination of it would depend upon the particular words of the charter-party: without a very precise agreement for that purpose, it seems hard that *the owners should lose the whole benefit of the voyage, where the object of it has been in part performed, and no blame is imputable to them."

[*566

In Hotham v. East India Company, 1 T. R. 638, the ship ultimately arrived at her destination.

If the original contract here was not performed, there is nothing in the circumstances of this case to entitle the plaintiff to freight pro rata. In Lutwidge . Grey, and Luke v. Lyde, the contract was not for one entire sum, but at so much the ton and quintal, and so divisible. Here the plaintiff could not have averred any of the facts which would entitle him to sue on the original contract. That contract was at an end upon the sale of the ship Jane at Fayal. And the second ship was hired by the captain as agent for the merchant, who paid the freight at Gibraltar. There was no engagement that the vessel hired at Fayal should perform the stipulations of the original contract, as by proceeding to Antwerp or otherwise, and it was the captain's duty to forward the goods for the merchant; 2 Valin. 64, Rocus de navibus et naulo, 81. The acceptance of the goods at Fayal being compulsory, and not spontaneous, did not render the merchant liable pro ratâ itineris, unless, indeed, the goods had been forwarded at the expense of the shipowner. In Abbott, 327, 8, it is laid down upon a reference to Osgood v. Groning, 2 Campb. 466, and other cases, that "these cases establish that acceptance of the goods is necessary to found an implied contract for the payment of freight, pro rata itineris. In the case of Luke v. Lyde, the acceptance was the only ground upon which the implication could be raised, and must have been thought a sufficient ground; for the master had not offered to carry forward the goods, nor could have done so without hiring another ship, for which he must have paid more than the amount of his full freight. Still it (*567 may be questionable whether acceptance alone shall in all cases, and as a general rule, be sufficient to raise such an implication, especially if the rateable compu

tation is to be made according to distance of time." And Story's commentary on this passage, in his edition of Abbott, p. 329, is in favour of the defendants. There can be no implied contract to pay pro rata as far as Fayal, for up to that point of the voyage the actual contract was in force, and the conveyance from Fayal to Gibraltar was effected and paid for by the defendants themselves. "Upon a review of the cases it will appear, that considering the subject with regard to the proceedings in the courts of common law of England, the right of freight, pro rata itineris, must arise out of some new contract between the master and the merchant, either expressly made by them, or to be inferred from their conduct."-Abbott, p. 330, c. 7, part 3.

Shee, in reply. In Cooke v. Jennings, the freight was to be paid on the arrival of the ship; here, on the delivery of the goods, which have been delivered; and this was not a locatio navis et magistri, but locatio operis transvehendarum mercium. The objection that the second ship was not hired with an option of going to Antwerp as well as Gibraltar, is answered by the fact that at Buenos Ayres, before the Jane was lost, the defendants consigned the goods to Gibraltar. The observations made in Abbott on the cases of Cooke v. Jennings and Bright v. Cooper, shew clearly that the learned writer was favourable to the claim pro ratâ itineris, and thought lightly of the case of Bright v. Cooper; and such is the view taken by the American courts. Story's Abbott, 301,

329. *568] As to the supposed distinction between the reservation of an entire sum for the voyage, and the agreement to pay by the ton or quintal, as the number of tons may at once be calculated, an entire sum is as much stipulated for in the one case as in the other. But all the cases agree, that if there has been an acceptance of the cargo, the merchant shall pay pro ratâ ; and here the defendants clearly accepted the goods. Cur. adv. vult.

TINDAL, C. J. In this case, two questions arise,-first, whether the plaintiff is entitled to recover the full freight agreed to be paid by the charter-party; and, secondly, if not entitled to recover the full freight, whether he is entitled to recover any and what freight pro ratâ itineris.

First, in order to entitle the plaintiff to recover the full freight, he must establish that he has performed the voyage prescribed by the charter-party. The first part of the voyage was duly performed by the arrival of the ship at Buenos Ayres; and a destination for the accomplishment of the homeward voyage was given by the freighter there, who appointed Gibraltar as the port of discharge. But the plaintiff never performed that homeward voyage, either in the ship mentioned in the charter-party or any other. The original ship and about onethird of the cargo having been lost by perils of the seas, the remainder of the cargo was left at the island of Fayal by the master, who, on the 12th of July, sailed in another vessel for England, having left instructions with the ViceConsul at Fayal to forward the remainder of the cargo (about two-thirds) by the earliest opportunity to Gibraltar. The master having been wrecked, on the next day returned to Fayal, and remained there until the 24th of July, when he again sailed for England, having on the 23d addressed a letter to the Vice-Consul, *569] stating his having been informed of *the expected arrival of a vessel originally destined for Newfoundland, and recommending the Vice-Consul, if he could not obtain a reduction of 4007. for the freight, to give that sum for the conveyance of the remainder of the cargo to Gibraltar, rather than an opportunity of sending the cargo forward should be lost. No authority appears to have been given to the Vice-Consul to make any contract for a hire of a vessel on accoount of the owners of the Jane. The master of the Jane certainly did not make any, nor did he personally make provision for the conveyance of the remainder of the cargo to its destination, much less superintend its transhipment, or accompany it to the port of discharge. Before his departure from Fayal no vessel of sufficient capacity to convey it had arrived at Fayal; but on the 29th of July such a vessel having arrived, the Vice-Consul chartered that vessel on behalf of the VOL. XXIX.-43