Case 1.-Goods were shipped under a bill of lading, with a memorandum, ship is to be cleared in sixteen days, and £8 per day demurrage to be paid after that time." Held, that the consignee taking delivery of goods under such a bill of lading was liable to pay the demurrage (d). Case 2.-A bill of lading, containing clauses as to demurrage, was pledged to I. for advances. I. took delivery of goods under the bill of lading. Held, that I. was not liable under the Bills of Lading Act to pay demurrage, merely by reason of the pledge of the bill of lading, but that he became liable by taking delivery of the goods under it (e). Case 3.-C. chartered a ship from A., "to be discharged as fast as the custom of the port would allow," and took bills of lading for the cargo, which did not refer to demurrage. There was no custom of the port of discharge. G., the consignee, had sold the beneficial interest in the goods to P., and gave a delivery order in his favour. Held, that G., as consignee, was liable on the implied contract in the bill of lading under the Bills of Lading Act (f). (d) Jesson v. Solly (1811), 4 Taunt. 52. (e) Allen v. Coltart (1883), 11 Q. B. D. 782. SECTION X. FREIGHT. Article 136.-Freight; what it is. "FREIGHT," in the ordinary mercantile sense, is the reward payable to the carrier for the carriage and arrival of the goods ready to be delivered to the merchant (a). The true test of the right to freight is the question whether the service in respect of which the freight was contracted to be paid has been substantially performed (b), or if not whether its performance has been prevented by the act of the cargoowner (c). Under a simple contract to pay freight (b) no freight is payable if the goods are lost (d) on the voyage (e), or for any other reason, except the fault of the merchant alone (ƒ), are not delivered at the port of destination. (a) The definition of the Judicial Committee in Kirchner v. Venus (1859), 12 Moore, P. C. 361, at p. 390, is, "Freight is the reward payable to the carrier for the safe carriage and delivery of goods." But Dakin v. Oxley (1864), 15 C. B., N.S. 646 (see p. 665) shows that safe carriage in the sense of delivery of goods in good condition is not necessary, and cases like Cargo ex Argos (1873), L. R. 5 P. C. 134, and Cargo ex Galum (1863), B. & L. 167, show that actual delivery of goods is not essential, readiness to deliver sufficing. (b) Per Willes, J., Dakin v. Oxley (1864), 15 C. B., N.S. 646, at p. 664; Kirchner v. Venus (1859), 12 Moore, P. C. 361, at p. 390, and Section XI., on Lien, post. (c) Cargo ex Argos, vide supra; Cargo ex Galam, vide supra; and Article 139. (d) A guarantee of a gross freight of £900 will be payable if the freight is less than £900, though the vessel is lost on the voyage, as the breach occurs at the port of loading: Carr v. Wallachian Co. (1867), L. R. 2 C. P. 468. (e) As to whether a charter includes one voyage or two, so that freight is payable for a part of the chartered services, though the ship is lost in performing the other part; see Mackrell v. Simond (1776), 2 Chit. 666. The clause "ship lost or not lost" is now very usual. This clause only refers to losses through perils excepted: G. Indian Railway Co. v. Turnbull (1885), 53 L. T. 325. Sometimes the clause "freight to be considered earned, ship lost or not lost, at any stage of the entire transit," is found in through bills of lading; see Article 22. (f) See Article 139. From the signing and delivery of bills of lading (g), while the goods are in course of carriage without unreasonable delay, and until they are delivered to the merchant, the master of the ship has a lien on them for the freight due for such carriage, and cannot be compelled to part with them till such freight is paid and the bills of lading delivered up (h). These incidents to freight exist by rule of law, and do not need a bill of lading or other written contract between the parties to support them, though they may be excluded by such a written contract (h). The term "freight" will be presumed to have its ordinary mercantile meaning (i), unless evidence is found in the charter or bill of lading, which negatives this, or raises an ambiguity, when oral evidence may be given as to the intention of the parties (j). Case 1.-Goods were shipped under a bill of lading with the words, 66 Freight payable in London." Evidence was tendered that by the custom of the steam shipping trade this meant "freight payable in advance in London." Held inadmissible, the word "freight" being well understood, and there being no words here to qualify it (k). Case 2.-Evidence tendered to show that the term "freight" in a charter, (g) Tindal v. Taylor (1854), 4 E. & B. 219, at p. 227; Thompson v. Trail (1826), 2 Car. & P. 334. And see Article 150, on Liens, post. (h) Dakin v. Oxley (1864), 15 C. B., N.S. 646, at p. 664; Kirchner v. Venus (1859), 11 Moore, P. C. 361, at P. 390. (i) Krall v. Burnett (1877), 25 W. R. 305; Lewis v. Marshall (1844), 7 M. & G. 729; Blakey v. Dixon (1800), 2 B. & P. 321. This will allow the introduction of usages of the particular trade, or practices of merchants creating rights between the parties to a contract in respect of some matter which is not in terms provided for by the contract; see per Willes, J., in Meyer v. Dresser (1864), 16 C. B., N.S. 646, at p. 662, and Article 8, ante. So Brown v. Byrne (1854), 3 E. & B. 703; where a custom at Liverpool as to discount from freight was held binding See also Russian Steam Navigation Co. v. De Silva (1863), 13 C. B., N.S. 610; The Norway (1865), 3 Moore P. C., N.S. 245. In Meyer v. Dresser (1864), 16 C. B., N.S. 646, evidence of a particular method of payment of freight, tendered as a "general custom of merchants," was rejected as a mere mode of carrying on business; and in Kirchner v. Venus, vide supra, evidence of custom as to freight was held inadmissible on the ground that one of the parties, being ignorant of it, could not have intended, or be presumed to have intended to be bound by it: sed quære; and see note, ante, p. 21. In Suart v. Bigland (C. A. Jan. 24, 1886), "to pay out of freight collected," was held to mean out of gross, not net, freight. (j) Lidgett v. Perrin (1861), 11 C. B., N.S. 362; Andrew v. Moorhouse (1814), 5 Taunt. 435; and see Article 8. (k) Krall v. Burnett, vide supra. See also Mashiter v. Buller (1807), 1 Camp. 84, criticised by Brett, J., 1 App. C. 218. which also referred to "passage money," included the passage money of steerage passengers. Held, inadmissible (7). Cise 3.-Goods were shipped under a bill of lading, which was not produced at the trial; but the shipping card contained the words "freight payable here." There was also tendered oral evidence of conversations as to this clause. Held, ambiguous as to the time of payment, the oral evidence admissible, and the nature of the actual contract a question for the jury (m). Note 1.-"With Primage and Averaye accustomed."-Primage was originally a small payment made by the merchant to the master for care and attention bestowed on his goods, for which the master could sue (o). By the master's agreement with the shipowner, primage may and usually does belong to the shipowner; and in that case the master cannot contract in the bill of lading that it should be paid to him (p). Primage at the present time is a percentage on the freight paid to the ship. owner by the merchant; part of it is sometimes allowed to the merchant's shipping agent by the shipowner as his remuneration, being in effect a sort of commission. It is very rare to find a master receiving primage at the present day. Average accustomed, or petty average, refers to certain small charges and expenses which used to be borne partly by ship and partly by cargo; the charge is now obsolete. Note 2.-Freight is usually payable under a voyage charter, in accordance with the express provisions of the charter, thus: a certain proportion of the freight, or a certain lump sum on sailing; remainder on delivery, either by cash or by specified bills. If the charter is a round charter, or there are loading and discharging expenses in the course of the voyage, such disbursements are usually by the charter to be advanced against the freight by the charterers or their agents. The following time charter clause speaks for itself:- "The charterers shall pay for the use and hire of the said Ivessel at the rate of per gross register ton per calendar month, and at and after the same rate for any part of a month; time to continue until the delivery to the owners, unless lost, at London. Should the vessel be lost without being heard of, hie shall cease to be due fifteen days after the date on which she left her last port." Where the charterers propose to put the ship up as a general ship, and the captain may sign bills of lading at a lower rate of freight than the charter, the shipowners usually protect themselves thus: "any difference between charter and bill of lading (1) Lewis v. Marshall (1844), 7 M. & G. 729. (m) Lidgett v. Perrin (1861), 11 C. B., N.S. 362, distinguishable from Krall v. Burnett by the special facts. (0) Charleton v. Cotesworth (1825), R. & M. 175; Best v. Saunders (1828), M. & M. 208. See Howitt v. Paul (1878), 5 Sc. Sess. C., 4th Ser. 321. (p) Caughey v. Gordon (1878), 3 C. P. D. 419. to be settled at port of loading before sailing; if in vessel's favour to be paid in cash, at current rate of exchange less insurance; if in charterer's favour, by captain's draft, payable three days after ship's arrival at port of discharge." Note 3.-Stipulations as to the payment of freight in the bill of lading vary very much. It is very common to find the freight made due and payable "on shipment of the goods," or "in exchange for bills of lading," or "on or before the departure of the vessel." A very usual clause is "Freight for the said goods with primage to become due on shipment, and to be paid in London in cash without deduction, ship lost or not lost." Where the freight is to be paid on delivery it is sometimes secured thus: "Freight and primage for the said goods to be paid at destination, but if the consignee for any reason, perils of the sea excepted, refuses to pay the same, shippers hereby undertake to pay amount here on demand," or "to be delivered after safe arrival at Z. to G., freight for the said goods as per margin being paid first in London." The clause "ship lost or not lost," almost always appears. A proviso is sometimes inserted for the payment of double freight on goods incorrectly described. Article 137.-Advance Freight. Where money is to be paid by the shipper to the shipowner before the delivery of the goods, such payment will be treated as an advance of freight, or as a loan, according to the intention of the parties as expressed in the documents (q). A stipulation that it shall be paid "subject to insurance," or "less insurance," will indicate that the payment is in advance of freight (r). If it is an advance of freight, it must be paid, though the goods are before payment lost by excepted perils, and it will not be recoverable from the shipowner if the goods are after payment so lost (s). It will be recoverable if the goods are (1) Allison v. Bristol Marine Insurance Co. (1876), 1 App. C. 209, at pp. 217, 233, in which all the cases are discussed by Brett, J., and Kirchner v. Venus (1859), 12 Moore, P. C. 361, is explained. (r) Allison v. Bristol Co. (1876), 1 App. C. at p. 229; Hicks v. Shield (1857), 7 E. & B. 663; Jackson v. Isaacs (1858), 3 H. & N. 405, in which the charterer was to deduct cost of insurance from advance freight; Frayes v. Worms (1865), 19 C. B., N.S. 159, in which it was held that general average on advance freight was to be paid by the charterer. ($) Anonymous Case (1684), 2 Shower, 283; De Silvale v. Kendall (1815), 4 M. & S 37; Byrne v. Schiller (1871), L. R. 6 Ex. 20, 319; Saunders v. Drew (1832), 3 B. & Ad. 445. For the explanation of this rule, which is peculiar to |