default in the master or his mariners; and, had these goods, which the pirates carried away, been thrown overboard, it would not have worked a disability in the master to receive the sum agreed on; because, both by the common law and law of marine, the act of God, or that of an enemy, shall not have an effect to work wrong in actions private; and a pirate is esteemed an enemy in our law.

Freight out and home. When a ship is freighted out and in, (or out and home,) there is no freight due till the whole voyage be performed; so that, if she be cast away coming home, the freight outwards as well as inwards becomes lost.

Freight for passengers.-Money due for passage is of the same nature as freight. If passage be taken in the ordinary way from one port to another, to be paid for on arrival, or so understood to be, from there being no special agreement to take it out of the ordinary course, such passage-money will be regulated by the same rules as freight, and will not be recoverable, unless the whole voyage be performed. But when a passage was taken from London to A., the money to be paid in London previous to the voyage, and the ship was lost in going round to Portsmouth, at which place the passenger was by agreement to join it and to embark; on action brought against the owners to recover the passage-money, it was said by the Court, that, had the money been payable at the end of the voyage, the owners would have had no claim to it; because the voyage was not performed; but as the agreement in this case was, that the money should at all events be paid before the voyage commenced, the passenger was a fellow-sharer with the captain in the perils of the sea, and must abide by his loss. Gillan v. Simkin, 4 Campb. 241.

By charter-party, the freighter covenanted to pay to the owner freight at and after the rate of so much per ton per month, for the term of six months at the least, and so on in proportion for less than a month, or for such further time than six months, as the ship might be detained in the service of the freighter until her first discharge, of until the day of her being lost, captured, or last seen, or heard of; such freight to be paid to the commander of the ship in manner following: viz. so much as might be earned at the time of the arrival of the ship at her first destined port abroad, to be paid within ten days after her arrival there, and the remainder of the freight at specific periods. It was holden, that this constituted one entire covenant, and that the arrival of the ship at her first destined port, was a condition precedent to the owner's right to recover any freight, and that the ship having been lost on her voyage out, the owner was not entitled to recover freight at so much per calendar month to the day of the loss. Gibbon v. Mendez, 2 Barn. & Ald. 17.

If freight be contracted for the transporting of women, and they happen in the voyage to be delivered of children, no freight becomes A master of a ship is not bound to answer freight to the owners for passengers, where it appears that they are not able to pay.

due for the infants.

Freight for cattle.-If freight be agreed on for a lading of certain cattle, or the like, from Dublin to West Chester, and some of them happen to die before the ship's arrival, the whole freight is become due, as well for the dead as the living. But, if the contract be to transport them at so much per head, freight will become due only for such as are living at the ship's port of discharge.

Wher cattle are sent on board, without any previous agreement

about transporting them, but generally, their freight is payable for the dead, as well as the living.

Freight for wine when it has leaked.—If freight be taken for 100 tons of wine, and 20 of them leak out, so that there is not above eight inches from the bulge upwards, yet the freight becomes due; but, if they be under eight inches, some conceive it then to be in the election of the freighters to fling them up to the master for freight. But most think otherwise; for, if all had leaked out, if there was no fault found in the stowage, by a survey from the Trinity House, there is no reason the ship should lose her freight; for the freight arises from the tonnage taken, and, if the leakage was occasioned through storm, the same, perhaps, may come into an average. Masters should take care to make their regular protests of a storm, as they may suffer severely by omitting it. The general rules now are, that if goods (of any sort) be damaged by the perils of the sea, and the merchant receive them, he must pay the freight, and cannot recover for damage; but if by default of the master or mariners, the merchant is entitled to a satisfaction; but, if he receive them he must pay the full freight, and cannot select part and reject part. If the damage arise from natural decay, as in fruit or corn, the loss is the merchant's, and he must pay freight, and bear the damage. In the case of leakage of liquors, the merchant may abandon for freight, if he please. The owner of a ship has a lien for freight, but in a total loss no freight is due. In case of a total loss with salvage, the merchant may either take the part saved, or abandon. Park, chap. ii. p. 70.

Of the performance of the charter-party by the freighter.-If, by the time appointed in the charter-party, the freighter is not ready to load, the parties are at liberty; and the suffering one hath his remedy by action for the same.

If part of the loading be on board, and some intervening misfortune prevent the merchant from shipping the whole in time, the master is at liberty to contract with another, and shall have freight, by way of damage, for the time that those goods were on board after the time limited; for a failure as to a complete loading will end the contract, unless afterwards affirmed by consent. And, though it be not prudent for a merchant and master to depart from the contract on every non-compliance with its terms, yet it is the highest justice that ships and masters should, in such cases, remain free: for, otherwise, by the bare lading of a cask or bale, they might be defeated of the opportunity of passage or the season of the year. If a merchant covenant to furnish a complete loading, or a specific number of casks or bales of goods, and fail so to do, he must of course make good the loss which the owners have sustained by his failure, to be settled, in case of disagreement, by a jury, who are to make due allowance to the merchant, by considering the profit the master has made in bringing the goods of other persons, in case any such have been brought. (11 East. 232.) See case of Hunter v. Fry, PART III. CHAP. II. Construction of Policies.

If goods be fully laden on board, and the ship hath broken ground, and the merchant determine again to unload them, and not to prosecute the adventure, by the marine law the freight is due.

Where no freight was to be paid for the cargo outwards, but freight for the cargo homewards, and the freighter's factor abroad had no goods to load on board of her, payment of the freight was decreed.

If a ship be freighted out and home, and deliver her cargo at the

place agreed on, or if a ship be freighted to go to any place to load, and arrive there, and the freighter's factor cannot, or will not, put any thing on board, the master must stay the days of demurrage agreed on by the charter-party, and make a regular protest for his freighter's non-compliance, who will, in this case, be obliged to pay him, empty, or full: though, should the master not wait the time stipulated, or omit to make his protest, he will lose his freight. In case the master, on his finding no goods provided, should load some on his own ac count, as salt or the like, this will not prevent his recovering the freight; but, if the master takes in such salt, on his own account, be fore the days of demurrage are expired, and that, by some condition with the freighter, he may still claim freight, then the freighter is to have the benefit of the salt, in deduction of the said freight.

If a freighter, by loading prohibited or unlawful goods, occasion the ship's detention, or otherwise impede the voyage, he will have to pay the freight agreed for.

In a charter-party on the St. Patrick, for a voyage from G. to bring home a cargo to Europe, it was stipulated that in the event of the non-arrival at the same port of another ship called the Grant, (which had been chartered by the same parties, and was then at sea.) then the charter on the Grant should be void to all intents and purposes whatsoever; it was held that the word non-arrival could not be construed so as to defeat the purposes of the voyage for which the Grant had been chartered, and her non-arrival for those purposes not being attributable to the fault of the charterers, the charter on the St. Patrick became void, and the charterers were not bound to provide her with a cargo. Soames v. Lonergan, 4 Dowling & Ryland, 74. by the time appointed in the charter-party, the ship be not ready to Of performance of the charter-party by the master or owners.-If, take in, the parties are at liberty; and the suffering one hath his remedy against the other, by action, to recompense the damages.

If part of the goods be on board, and some intervening misfortune prevent the master from taking in the remainder, the merchant may ship them on board another, discharge the first, and recover damages against the master and owners for the rest.

If the ship in her voyage become unable, without the master's fault, or that the master or ship be arrested by any foreign prince or state in her voyage, the master may either mend his ship, or freight another, but if the merchant will not consent thereto, then the freight becomes due for so much as the ship hath earned; otherwise the master is liable for all damages that shall happen; and therefore, if that ship, to which the goods were translated, perish, the master shall answer; but, if both ships perish, then he is discharged. But, in case of extreme necessity, as that the ship would be in a sinking condition, and an empty ship is passing by or at hand, he may translate the goods; and if that ship sink or perish, he is there excused; but then it must be apparent that the ship seemed probable and sufficient.

If a master shall weigh anchor and sail after the time covenanted or agreed for his departure and any damage happens at sea after that time, he shall refund and make good all such misfortune. Yet, if a charter-party be made, that the plaintiff shall sail from London to Lisbon with the first fair wind and opportunity, &c., in consideration of which the merchant did covenant to pay so much for freight, the ship departs, not with the first fair wind and opportunity, yet allerwards breaks ground and arrives at her port, the freight in this

and

case is become due; and there is nothing can debar the ship of her freight but non-departure; for only that in law is material to avoid payment of the freight; but to say the ship did not depart with the next wind, is but a circumstance, which, in strictness of law, is not necessary to be denied.

If it be agreed, that the master shall sail from London to Leghorn in two months, and freight accordingly is agreed on, and he begin the voyage within two months, though he do not arrive at Leghorn within the time, yet the freight is become due.

The East India Company might, by charter-party, keep a ship they had freighted a long time in India, and did so keep her until she was unfit for service, and could not come home; they were obliged in chancery to pay the damage, though, by the charter-party, it was payable at the return of the ship.

If a master let out his ship, and afterwards secretly take in other goods unknown to the first freighter, by law marine he loses his freight; and, if it should so fall out that any of the freighter's goods should, for safety of the ship, be thrown overboard, the rest shall not become subject to average, but the master shall make the damage good; though, if the goods should be brought into the ship secretly and unknown to him, it is otherwise; and goods so brought in may be subject to what freight the master thinks fit.

When a ship puts into any other port than that she was bound to by agreement, the master shall answer all damages that shall accrue thereby; but, if she was forced in by storm, enemies, or pirates, he must afterwards proceed to that he was obliged to by contract.

If a ship in her voyage happen to be taken by an enemy, and afterwards be retaken by another ship, in amity, and restitution be made, and she proceed on her voyage, the contract is not deter mined, though the taking by the enemy divested the property out of the owners; yet by the law of war, that possession was defeasible; and, being recovered in battle afterwards, the owners became reinvested: so the contract, by fiction of law, became as if she never had been taken, and the entire freight becomes due.

It was covenanted, by a charter-party, that a ship should return by a certain time within the river Thames, (the danger of the sea excepted,) and afterwards in the voyage, and within the time of the return, the ship was taken upon the sea by enemies unknown to the covenanter; and, being detained by them, could not return within the river Thames within the time mentioned by the covenant :-Resolved, This impediment was within the exception; for, these words intend as well any danger upon the sea by pirates or men of war, as dangers of the sea by shipwreck, tempest, or the like.

How an embargo will end a charter-party.—If, before the departure If the ship, there should happen an embargo, occasioned by war, reprisals, or otherwise, with the country to which the ship is bound, so that she cannot proceed on her voyage, the charter-party shall be dissolved without damages or charges to either party, and the merchant Shall pay the charges of unlading his goods; but, if the restraint arises from a difference between the parties themselves, the charter-party shall still remain valid in all points.

་་

If the ports be only shut, and the vessels stopped for a time, the i harter-party shall still be valid, and the master and merchant shall be Veciprocally obliged to wait the opening of the ports, and the liberty of the ships, without any pretensions for damages on either side, #19 in

However, the merchant, at his own charges, may unlade his goods during shutting up of the port, upon condition either to relade them, or indemnify the master. See CHAP. II. PART III. of Marine Assur

ances.

Form of a Charter-party of Affreightment.

THIS charter-party, indented, made, &c., between A. B., &c. mariner, master and owner, of the good ship or vessel, called, &c. now riding at anchor at, &c. of the burthen of 200 tons, or thereabouts, of the one part, and C. D. of, &c., merchant, of the other part, witnesseth, that the said A. B., for the consideration hereinafter mentioned, hath granted, and to freight letten, and by these presents doth grant, and to freight let, unto the said C. D., his executors, administrators, and assigns, the whole tonnage of the hold, stern-sheets, and half-deck, of the said ship or vessel, called, &c. from the port of London, to &c., in a voyage to be made by the said A. B. with the said ship, in manner hereinafter mentioned, (that is to say,) to sail with the first fair wind and weather that shall happer after, &c. next, from the port of London, with the goods and merchandise of the said C. D., his factors or assigns, on board, to, &c. afore said, (the danger of the sea excepted,) and there unlade and make discharge of the said goods and merchandises: and also shall there take into and on board the said ship again, the goods and merchandises of the said C. D., his factors or assigns, and shall theu return to the port of London, with the said goods, in the space of, &c. limited for the end of the said voyage. In consideration whereof, the said C. D. for himself, his executors, and administrators, doth covenant, promise, and grant, to and with the said A. B., his executors, administrators, or assigns, by these presents, that the said C. D., his executors, administrators, factors, or assigns, shall and will well and truly pay, or cause to be paid, unto the said A. B., his executors, administrators, or assigns, for the freight of the said ship and goods, the sum of, &c. (or so much per ton,) within twenty-one days after the said ship arrived, and goods returned, and discharged at the port of London aforesaid, for the end of the said voyage; and also shall and will pay for demurrage, (if any shall be by default of him, the said C. D. lis factors or assigns,) the sum of, &c. per day, daily, and every day, as the same shall grow due. And the said A. B., for himself, his executors, and administrators, deth covenant, promise, and grant, to and with the said C. D., his executors, adminis trators, and assigns, by these presents, that the said ship or vessel shall be ready at the port of London to take in goods by the said C. Î., on or before, &c. Lext coming. And the said C. D., for himself, his, &c. doth covenant and promise, within ten days after the said ship or vessel shall be thus ready, to have his goods on board the said ship, to proceed on in the said voyage; and also, on arrival of the said ship at, &c., within, &c. days to have his goods ready to put on board the said ship, to return on the said voyage. And the said A. B., for himself, his executors, and administrators, doth further covenant and grant, to and with the said C. D., his executors, administrators, and assigns, that the said ship or vessel now is, and at all times during the voyage shall be, to the best endeavours of him, the said A. B., his executors, and administrators, and at his and their own proper costs and charges, in all things made and kept stiff, staunch, strong, well-apparelled, furnished, and provided, as well with men and mariners sufficient and able to sail, guide, and govern the said ship, as with all manner of rigging, boats, tackle, and apparel, furniture, provision, and appurte nances, fitting and necessary for the said men and mariners, and for the said ship during the voyage aforesaid. In witness, &c.

The following is the Form of a Charter-party, whereby the Owners of one Moiety of a Ship let to freight their Share to the Owners of the other Moiety. THIS charter-party, indented, made, &c., between A. B. and C. D., of London, merchants, owners of one moiety or half part, of the good ship or vessel called the Neptune, of the burthen of 200 tons, with the like moiety of all the sails, masts, tackle, apparel, furniture, ordnance, and appurtenances thereto belonging, riding at anchor in the river Thames, within the port of London, of which the said C. D. is master, of the one part, E. F. and G. H., of London, merchants, owners of the other moiety, and residue of the said ship, with the masts, sails, tackle, ordinance, furniture, and apparel thereunto belonging, on the other part, witnesseth, that the said A. B. and C. D. have granted and letten to freight, and by these presents do grant and let to freight, all their said part and moiety of the said ship and premises, unto the said E. F. and G. H., for a voyage with her (by God's grace) to be made in the manner and form following:

That is to say, that the said A. B. and C. D., for them, their executors, adminis