avoid undue delay in loading and removing it, and to pay the freight at the termination of the voyage or at the time specified.1

In a General Ship the obligations of the parties are of the same description, modified by the circumstances. The contract is created by advertisement on the one hand, and acceptance of the terms by deposit of goods on the other. The owners generally advertise the vessel in newspapers or otherwise, stating her voyage, the time of sailing, her burthen, and sometimes her force. These announcements will be held to contain the special conditions, and the others will be presumed by law. The advertisement gives the master the power to accept the goods of those who send them in consequence of the general invitation, and the owners cannot, in the mean time, contract for any other use of the ship, to the prejudice of those who so accept the terms of the advertisement. The chief security possessed by the merchant is the bill of lading.

SECT. 3.-Bill of Lading.

The bill of lading, which is the merchant's receipt for the goods which he has intrusted to the shipowners, has become a very important and useful commercial instrument, as a means of effecting an expeditious sale or pledge of the cargo. A bill of lading is given in almost all cases of charter-party, and even in those cases where the ship, being hired for a specified time, is properly under the merchant's own management. In a general ship a receipt is commonly given in the first place by the master or mate for the sake of convenience, and the receipt is afterwards exchanged for a bill of lading.

The bill is an acknowledgment by the shipmaster that certain goods have been intrusted to him in good condition, which he binds himself to deliver at the port of destination. The goods may be specifically described, or they may be merely mentioned as packages with their contents, according to the opportunities which the shipmaster has of knowing what they are; and it is not unusual to insert a clause "quality and contents unknown." The person to whom the master is taken bound to deliver them will depend on the intentions of the shipper or merchant. It may be to the shipper himself, or to his order, or to his assigns, or to the

1 1 Abbot, 247-8. B. C. i. 539, 540.- Abbot, 319. B. C. i. 541.

bearer, or to a consignee or purchaser expressly named, or his assignees. This instrument, like a bill of exchange, is negotiable or transferable from hand to hand, as a title to the property for which it is an acknowledgment.1

If no one is named as the particular consignee, or person to whom the goods are to be delivered, the shipper may indorse it, as if he were the drawer of a bill payable to himself. He may either indorse to a particular person as consignee, or indorse blank; in the former case, the indorsee may re-indorse, in the latter, the goods are deliverable to bearer. Bills of lading, like foreign bills of exchange, are generally drawn in sets or parts of three, "one of which bills being accomplished, the other two are to stand void." One bill is generally sent by post, one accompanies the cargo, and one remains with the shipper. Meanwhile, the shipmaster assumes the position of a trustee for whoever has right to the bill of lading, and on its being shown to him by any bearer when the bill is blank, or by the person who has a title on its face if it is not so, he must deliver the goods to such holder.*

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The person at the port of delivery to whom the bill of lading is transferred by the shipper, may be the purchaser of the goods, or merely the consignee as agent for the shipper, or some other person. Whatever may be his situation, however, he can transfer the bill of lading by indorsation, and so dispose of the cargo before it has arrived, subjecting himself of course to the claims of employers, if he have any.† By this means a purchaser of goods coming from a distant country may sell part or the whole before their arrival, and provide a fund for meeting their payment. When the indorsation of the bill of lading is an onerous transaction, the goods cannot be stopped in transitu.‡

SECT. 4.-Freight and other Charges.

The freight is the consideration for which the owners of the vessel engage to carry the goods of the merchant, or to allow him for a time the use of the vessel. Two additional charges are sometimes stipulated to be paid along with it, termed primage or hat-money, and petty average. The former is a perquisite to the master, unless it be otherwise disposed of by agreement between him and the owners; the

Abbot, 319, et. seq.- Ibid. B. C. i. 198, 542-547.-* See as to Bills of Exchange, p. 324.-+ See above, p. 167.- Ibid. p. 164.

latter includes several petty charges to cover the expense of towing, beaconage, &c.i

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If the freight be so much for the voyage, or per cask or package, the chance of the length of the voyage is with the shipowners. If the agreement is for so much per week, month, &c., it is with the shipper. If the shipper agrees for the whole vessel, he has to pay, as already stated, the stipulated freight, whether he occupy the whole or not. an entire ship be hired, and the burthen thereof expressed in the charter-party, and the merchant covenant to pay a certain sum for every ton, &c., of goods which he shall have laid on board, but do not covenant to furnish a complete lading, the owners can only demand payment for the quantity of goods actually shipped."3 Where in such a case the merchant has engaged to provide a full cargo, he will be liable for the deficiency, according to the amount of unoccupied tonnage. Where the whole vessel is agreed for without specification of tonnage, and the cargo is deficient, the amount of freight for unoccuped room will be a question of damages, in which the freight of other goods, taken by the shipowners to fill up the space, will be considered. The sum payable for unoccupied room is called dead freight; but though thus termed, it is in reality a compensation to the shipowner for his loss, and is not precisely measured by the freight he would have obtained. In estimating it, any payment saved to the owner must be considered; and so it was found, that where shippers had engaged to furnish a full cargo at so much per ton, in estimating the damages to which they were liable for failing to do so, the amount of drogherage" or lighterage which the owners would have had to pay was deducted. In a general ship, if there is no stipulation as to the amount of freight, or it is not mentioned in the advertisement, the usage of trade will be the rule.

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Where the holder of a bill of lading, containing a clause to deliver the goods on payment of freight, takes delivery accordingly, he will be personally liable for the freight, though he may have purchased the bill of lading with an understanding that he is not responsible. In such a case the shipper, it would appear, is likewise liable, unless there be some specialty. Where the bill is to the charterer or his assigns, "he or they paying freight," the former has been

Abbot, 404, Smith's M. L. 283. B. C. i. 567.-2 Abbot, 413.—3 Ibid. 412. Ibid. 411. B. C. i. 574.-5 M'Gavin v. Cuddy, 19th December 1843.- Abbot, 410.-7 Smith's M. L. 287. Abbot, 414.

found liable on failure of the indorsee of the bill; and so, where the bill expressed goods to be consigned "on account and risk of W. B. to Messrs P. and W. and their assigns, they paying freight for the same," it was laid down that the expressions in the bill of lading, which threw the payment on the consignee, are for the benefit of the shipowner, and are not to deprive him of his legal remedy against the shipper.2

The freight begins to run from the time when the ship breaks ground and begins the voyage. Whatever trouble or expense may be incurred before this is not remunerated by freight.

The shipmaster has a lien on the goods committed to him until the freight is paid.*

The owners and master of the ship come under an obligation to convey the goods safe, "the act of God and of the king's enemies excepted;" and should the ship and cargo both perish, the freight is part of the common loss, which must be borne by the shipowners. It is a general rule that freight is only due if the voyage has been safely completed, and the goods are delivered at the destined port. But the principle admits of equitable exceptions in practice; so that, in a case of necessity, a different conveyance may be used from that contracted for. Thus, in the case of the ship being lost or disabled during the voyage, the master is entitled to freight if he convey the goods by the best means he can find to their destined port.3 Where the goods have deteriorated from their own inherent nature, the freight is due in full. Where they have suffered damage from any other cause than the badness of the ship, or careless usage in it, the merchant is responsible for full freight, if he receives. them; and in such a case, if the goods reach the port of destination in a damaged state, the criterion of freight will be the merchant's taking or abandoning them. If it be necessary to throw goods overboard to preserve the ship, freight will be due for them, the merchant's proportion of the loss in this, as in other respects, being met by average.5 (See below, p. 280.) If the original port of destination cannot be reached by the shipmaster, on account of blockade or any similar cause, freight will be due if the master so alter the voyage that the owners of the cargo shall derive the full advantage

1 Abbot, 415.-2 Domett v. Beckford, 1833, 2 Nev. and Mann, 374.See below, Part XII. Chap. IV.3 B. C. i. 569. Smith's M. L. 284.4 Abbot, 427. B. C. i. 571.- Smith's M. L. 284.

expected; and if he do not succeed in doing so, yet if the merchant accept of the goods after a portion of the voyage is completed, he will have to pay a corresponding portion of the freight. Where the merchant demands his goods before the completion of the voyage, full freight is due.2 If the voyage have not been commenced, from its being prohibited by government or otherwise, the contract is dissolved, and no freight is due.3

SECT. 5.-Lay-days and Demurrage.

It has already been said that the merchant is responsible for delays in loading and unloading his cargo. The damage is generally regulated by agreement, or the understood custom of the place. The necessity of having full time to receive and stow away all the cargo, of waiting for convoy during time of war, &c., may make a delay of a certain length convenient for both parties. The days so agreed on, and for which the merchant is not responsible, are called Lay-days, and sometimes "Running" or "Working" days; but a farther period is generally stipulated for, during which the merchant may detain the vessel by paying a certain sum of hire per day, called Demurrage. The time at which the lay-days for loading commence will be stipulated in the agreement. Those for unloading commence when the vessel has arrived at the usual place of unloading, and not when she has arrived at the entrance of the port.4

The number of days of demurrage may be fixed by the agreement, or they may be left indefinite, a charge at so much per day being fixed. In the former case, if the number of days is exceeded, the owners have a claim of the nature of damages against the merchant. The rate settled for demurrage will generally be considered the best measure of the damage, but it will be open to either party to prove the real damage to be less or more.5 It is no defence to the merchant that he had no control over the circumstances which have caused the delay, if it be not occasioned on the part of the shipowner. In the agreement for lay-days or demurrage, the expression "working days" excludes Sundays and custom-house holidays; "running days" includes every day. Where no specification is made, the custom of

1 Abbot, 454. B. C. i. 571.-2 B. C. i. 573.— Ibid. 574. Abbot, 462.Brereton v. Chapman, 14th May 1831, 7 Bingh. 559.- Abbot, 303, et seq. B. C. i. 575, 576. Holt, 326.- Abbot, 307. B. C. i. 575.-7 B. C. i. 577.

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