is not answerable for the freight, for that would prove to be a most inconvenient check to the transactions of business; and the buyer takes independently of the charge of freight, unless that charge forms part of the terms of sale. Nor would he be liable even if he should enter the goods at the custom-house in his own name, while the freight was unpaid.a

If part of the cargo be sold on the voyage from necessity, the owner, as we have seen, pays the value at the port of delivery, deducting his freight, equally as if the goods had arrived. But if the goods be prohibited an entry by the government of the country, and such prohibition takes place after the commencement of the voyage, and the cargo be brought back, the freight for the outward voyage has been held to have been earned: and the case was distinguished (though, I think, the distinction is not very obvious) from that of a blockade of the port of destination, and decided on the authority of the French ordinance of the marine. Nothing can be more just, observes *Valin, than that the outward freight should be allowed, in such a case, since the interruption proceeds from an extraordinary cause, independent of the ordinary marine perils. case of a blockade of, or interdiction of commerce with

*223

The

shipped on his account, and had that not been the case, the action would not have been sustained. If there be no charter-party, the shipper was held, by Lord Tenterden, not to be liable in such a case. Drew v. Bird, 1 Moody & Mason, 156. In Sanders v. Van Zeller, 2 Gale & Dav. 244, S. C. 3 Adol. & Ell. N. S. it was held by the Q. B. that the acceptance of the goods under the bill of lading by the consignee, did not raise an inference in law of a contract to pay the freight, though the bill of lading stated he paying freight for the same. But it was admitted that the circumstances might be evidence to a jury of such a contract. Independent of this case, I should have thought that the law would have raised such a contract.

a Artaza v. Smallpiece, 1 Esp. N. P. Rep. 23.

> Morgan v. Insurance Company of North America, 4 Dallas' Rep. 455.

• Ord. tit. Du Fret. art. 15. Valin, ibid. Code de Commerce, art. 299.

the port of discharge, after the commencement of the
voyage, is held to be different; for, in that case, the
voyage is deemed to be broken up, and the charter-
party dissolved; and if the cargo, by reason of that ob-
stacle, be brought back, no freight is due. The same
principle applies if the voyage be broken up and lost,
by capture upon the passage, so as to cause a complete
defeasance of the undertaking, notwithstanding there
was a subsequent recapture, as in the case of the Hiram.
On the other hand, an embargo detaining the vessel at
the port of departure, or in the course of the voyage,
does not, of itself, work a dissolution of the contract. It
is only a temporary restraint, which suspends, for a
time, its performance, and leaves the rights of the parties
in relation to each other untouched. If the ship be
laden, and be captured before she breaks ground, and
afterwards recaptured, but the voyage broken up, the
ship owners are not entitled to any freight, though, by
the usage of the trade, the ship was laden at their ex-
pense. It is requisite that the ship break ground, to
give an inception to freight. It is the same thing with
a blockade or hostile investment of the port of depart-
ure. Such an obstacle does not discharge the contract
of affreightment, because it is merely a tempo-
rary suspension of its performance; and the *224
ship owner may detain the goods until he can

?

a Scott v. Libby, 2 Johns. Rep. 336.

Liddard v. Lopes, 10 East's Rep.

526. But in the case of the Two Friends, in Edw. R. 246, Lord Stowell a!lowed a pro rata freight, though the vessel did not reach her port of destina tion, owing to a blockade; though in general, if the voyage be not performed, the rule of the admiralty, like that of the common law, is to deny freight. The Louisa, 1 Dodson, 317.

b 3 Rob. Adm. Rep. 180.

Hadley v. Clarke, 8 Term Rep. 259. M Bride v. Marine Insurance Company, 5 Johns. Rep. 308. Baylies v. Fettyplace, 7 Mass. Rep. 325. a Curling v. Long, 1 Bos. & Pull. 634.

prosecute the voyage with safety, or until the freighter tenders him the full freight. This was the decision in the case of Palmer v. Lorillard," in which the doctrine was extensively examined; and it was shown, by a reference to the foreign ordinances, and the soundest classical writers on maritime law,b that the master, in the case of such an invincible obstacle of a temporary nature to the prosecution of the voyage, is entitled to wait for the removal of it, so that he may earn his freight, unless the cargo consists of perishable articles which cannot endure the delay. He stands upon a principle of equity which pervades the maritime law of Europe, if he refuses to surrender the cargo to the shipper without some equitable allowance in the shape of freight, for his intermediate service.

When the goods become greatly deteriorated on the voyage, it has been a very litigated question, whether the consignee was bound to take the goods, and pay the freight, or whether he might not abandon the goods to the master in discharge of the freight. Valin and Pothier entertained opposite opinions upon this question.c The former insists, that the regulation of the ordinance holding the merchant liable for freight on deteriorated goods, without the right to abandon them in discharge of the freight, is too rigorous to be compatible with equity. He says the cargo is the only proper fund and pledge for the freight, and that Casaregisd was of the same opinion. Pothier, on the other hand, was against

16 Johns. Rep. 348.

b Ord. de la Mar. liv. 3. tit. 3. Fret. art. 15, and tit. Charte-Partie, art. 8. Valin, h. t. Pothier, Charte-Partie, Nos. 69. 100, 101. Laws of Oleron, art. 4. Consulat, par Boucher, c. 80. 82. 84. Roccus, de Nav. n. 54. Jacobsen's Sea Laws, by Frick, 295.

• Valin's Com. tome i. 670. Pothier, Charte-Partie, No. 59. Disc. 22. n. 46, and Disc. 23. n. 86, 87.

the right of the owner to abandon the deteriorated goods in discharge of the *freight; and this is the *225 better opinion, and the one adopted in the case of Griswold v. The New-York Insurance Company. It is in accordance with the ordinances of the marine, and of Rotterdam, and with the new commercial code of France; and the latter puts an end to all further doubt and discussion on the subject in France. The ship owner performs his engagement when he carries and delivers the goods. The right to his freight then becomes absolute, and the carrier is no more an insurer of the soundness of the cargo, as against the perils of the sea, or its own intrinsic decay, than he is of the price in the market to which it is carried. If he has conducted himself with fidelity and vigilance in the course of the voyage, he has no concern with the diminution of the value of the cargo. It may impair the remedy which his lien afforded, but it does not affect his personal demand against the shipper.

If casks contain wine, rum or other liquids, or sugar, and the contents be washed out, and wasted, and lost, by the perils of the sea, so that the casks arrive empty, no freight is due for them; but the ship owner would still be entitled to his freight, if the casks were well stowed, and their contents were essentially gone by leakage, or inherent waste, or imperfection of the casks.c

a 3 Johns. Rep. 321. Mr. Bell says, it is likewise the law in Scotland. 1 Bell's Com. 570. Jordan v. Warren Ins. Co. 1 Story's R. 342.

Ord. tit. Du Fret. art. 25. Ord. of Rotterdam, art. 155. Code de Com. art. 305. 310. Boulay Paty, tome ii. 488. The foreign ordinances and the discussions of the foreign jurists on this litigated question, whether the merchant can abandon the deteriorated goods when brought to the place of destination, and thereby discharge himself from the freight, are stated at large in Abbott on Shipping, 5th Am. edit. Boston, 1846, pp. 516–523.

Molloy, b. 2. c. 4. sec. 14. Frith v. Barker, 2 Johns. Rep. 327.

Should the cargo consist of live stock, as is frequently the case in voyages from this country to the West Indies, and some of the horses or cattle, for instance, should die in the course of the voyage, without any fault or negligence of the master or crew, and there be no express agreement respecting the payment of freight, the general rule is, that the freight is to be paid for all

that were put on board. But if the agreement #226 *was to pay for the transportation of them, then

no freight is due for those that die on the voyage, as the contract is not, in that case, performed. The foreign marine law allows freight paid in advance to be recovered back, if the goods be not carried, nor the voyage performed, by reason of any event not imputable to the shipper. The reason is, that the consideration for payment, which was the carriage of the goods, has failed. But the marine ordinances admit, that the parties may stipulate that the freight so previously advanced shall, at all events, be retained. In Watson v. Duykinck, the rule of the marine law was recognised, though it was not applied to that case, because the contract there appeared to be, that the freight was paid for receiving the passenger and his goods on board; and, in such a case, the payment is to be retained, though the vessel and cargo be lost on the voyage. The general principle of the marine law was admitted, in the fullest latitude, in Griggs v. Austin,d and whether the freight previously advanced is to be retained or returned, becomes a question of intention in the construction of the contract. The French ordinances require a

a

Roccus, de Nav. et Naulo, n. 80.

Dig. 14. 2. 10. Molloy, b. 2. c. 4. sec. 8. Ord. de la Mar. tit. Du Fret. art. 18. Cleirac, les Us et Coutumes de la Mer, 42. 3 Johns. Rep. 335. 2 Pick. Rep. 20.

Code de Commerce, art. 302.