not lost by excepted perils (t), or if the shipowner has not fulfilled the condition precedent, of the starting within a reasonable time of a seaworthy ship on the agreed voyage (u).

If advance freight be not paid at the time specified, there will not be a lien for it on the goods carried, without express stipulation (x).

Payments for ship's use by the person liable to pay freight, before such freight is due, without authority from the contract of affreightment, will be treated rather as loans than as prepayment of freight (y).

If the payment in advance is regarded as a loan by the shipper to the shipowner, whether on security of the freight or not (2), it is repayable, if freight to that amount be not due from the shipper, whether the ship be lost or not, and it cannot be insured by either party (a).

ance...

Case 1.-Goods were shipped under a charter "to be delivered on being paid freight £5 per ton delivered. Cash for ship's disbursements to be advanced to the extent of £300, free of interest, but subject to insurThe freight to be paid on unloading and right delivery of cargo as follows, in cash, less two months' interest at 5 per cent., and if required £300 to be paid in cash on arrival at port of loading, less two months' interest." D., agent for the charterer, C., advanced £300; the ship was lost on the voyage, and C. claimed £300 from A., the shipowner, as a loan. Held, that the charterer, and the provision for insurance, showed conclusively that the advance was for freight and not for loan, and as such could not be recovered, though the ship was lost (b).

English law, and probably arose from the long voyages of the East India trade, see Brett, J., at 1 App. C. 223.

(t) G. Indian Peninsular R. Co. v. Turnbull (1885), 53 L. T. 325. Rodocanachi v. Milburn (1886), 18 Q. B. D. 67; Dufourcet v. Bishop (1886), 18 Q. B. D. 373, in which the advance freight was in effect recovered as part of the damages for non-delivery of the goods.

(u) Ex parte Nyholm, in re Child (1873), 29 L. T. 634. Cf. Smith v. Pyman (1891), 1 Q. B. 742, on the wording "one-third freight, if required, to be advanced."

(x) How v. Kirchner (1857), 11 Moore, P. C. 21; Kirchner v. Venus (1859), 12 Moore, P. C. 361; Tamvaco v. Simpson (1866), 19 C. B., N.S. 453, see the judgment of Willes, J.; Ex parte Nyholm, in re Child (1873), 29 L. T. 634, and see Articles 150, 155, 157, post.

(y) Tanner v. Phillips (1872), 42 L J. Ch. 125; The Salacia (1862), 32 L. J. Adm. 43, and see Article 147, s. vii.

(z) It may not involve a set-off against the freight.

(a) Watson v. Shankland (1873), L. R. 2 H. L. Sc. 304; Manfield v. Maitland (1821), 4 B. & Ald. 582; Allison v. Bristol Marine Insurance Co. (1876), 1 App. C. 229, 253.

(b) Hicks v. Shield (1857), 7 E. & B. 633. See also Allison v. Bristol Insurance Co., vide supra; and for a curious case of advance freight, see The Thyatira (1883), 8 P. D. 155.

Case 2.-A ship was chartered, "freight to be paid thus: £1200 to be advanced the master by freighter's agents at X., and to be deducted with 1 per cent. commission on the amount advanced, and cost of insurance, from freight on settlement thereof, and the remainder on right delivery of the cargo at port of discharge, in cash . . . the master to sign bills of lading at any current rate of freight required without prejudice to the charter, but not under chartered rates unless the difference be paid in cash." The shippers paid the £1200, and required the master to sign bills of lading under chartered rates, putting off the payment in cash of the difference, £700, by excuses. The ship was lost on the voyage. Held, the £1200 could not be recovered back from the shipowners, and the shipowners could recover the £700, the intention being that it should be advance of freight, payable whether the ship was lost or not (c).

Case 3.-Goods were shipped under a charter," Four-fifths of freight calculated on quantity shipped to be advanced and paid in cash in one month from the vessel's sailing from her last port in Great Britain, steamer lost or not lost." The excepted perils did not include the master's negligence. She sailed July 12, and was lost through the negligence of her master on July 19, the loss being known on July 21; on July 26 the freighter paid four-fifths of freight to the charterer. Held, that the freighter could recover such payment, as "lost or not lost " only referred to losses by excepted perils, and not to a loss by master's negligence (d).

Cuse 4.-Goods were shipped under a charter, "freight to be paid, half in cash on unloading and right delivery of cargo, and the remainder by bill in London at four months' date. The captain to be supplied with cash for ship's use." Under the last clause, the master drew a bill for £219 on the freighters, which was accepted and paid. The ship was lost on the voyage. Held, that the sum of £219 was a loan, repayable by the shipowner whatever the result of the voyage, and consequently not insurable by the charterer (e).

Case 5.-Goods were shipped under a charter, "Sufficient cash for ship's disbursements to be advanced, if required, to the captain by charterers (C.) on account of freight at current rate of exchange subject to insurance only." The whole freight was £735. C. advanced at X. £160, being allowed £5 for insurance. C. did not insure the £160. The ship was lost by perils not excepted, and C. claimed to recover £8500, the price for which the goods were sold "to arrive," less £575 balance of freight. The shipowners claimed to deduct £735, the whole freight. Held, they were not entitled to do so (ƒ), as C.'s damage was the amount he would have to receive, less the amount he would have to pay, on arrival of the goods.

Case 6.-Under a charter, with a clause "One-third freight, if required, to be advanced, less 3 per cent. for interest and insurance," the ship sailed and was wrecked on her voyage. After the wreck, the shipowner" required' payment for the first time of one-third freight. Held, that the charterer was under no liability to pay advance-freight till requirement by the shipowner, and that this requirement could not be made when the voyage could not be performed (g).

(c) Byrne v. Schiller (1871), L. R. 6 Ex. 20, 319. That the shipowners would have no lien for such a difference without an express agreement, is shown by Gardner v. Trechmann (1884), 15 Q. B. D. 154.

(d) G. Indian Pen. R. Co. v. Turnbull (1885), 53 L. T. 325.

(e) Manfield v. Maitland (1821), 4 B. & Ald. 582.

(f) Rodocanachi v. Milburn (1886), 18 Q. B. D. 67. See Dufourcet v. Bishop (1886), 18 Q. B. D. 373.

(9) Smith v. Pyman (1891), 1 Q. B. 742; but see Oriental S. S. Co. v. Tyler

Article 138.-Back Freight.

When the ship is either ready to deliver cargo at the port of destination, or is prevented by excepted perils from reaching such port (h), but the merchant does not take delivery or forward instructions within a reasonable time, the master, if he does not tranship in the interests of the shipowner (2), has the power and duty to deal with the cargo in the owner's interest at the owner's expense. He may land and warehouse it, or, if this is impracticable, may carry it in his ship, or forward it in another ship to such place as may be most convenient for its owner, and can charge the owner with remuneration for and expenses of such carriage under the name of "back freight" (j).

Case.-Oil was shipped from X. to Havre, under a bill of lading, "Goods to be taken out within twenty-four hours after arrival." On reaching Havre the landing of oil was forbidden; attempts to land it at other ports near failed. The ship returned to H., transhipped the oil into lighters in the harbour, unloaded the rest of the cargo, reshipped the oil and brought it back to L. The shipper made no request for the delivery of the goods at Havre. Held, that the shipowner was entitled to the freight and expenses of the return journey to X., as well as the original freight from X. to H. (j).

Dead Freight.

See Article 161, post.

Article 139.-Shipowner's Right to Full Freight. The shipowner is entitled to the full freight in the charter or bill of lading :

1. When he delivers the goods at the port of destina

(1893), 9 T. L. R. 591, where on the clause "one-third of the freight to be paid on signing bill of lading," it was held recoverable, where shippers had delayed presenting bill of lading till after ship had sunk, and then refused to present it, or pay advance freight.

(h) Semble, that the shipowner can here also recover similar expenses and back freight incurred in interests of cargo-owner; vide Notara v. Henderson (1870), L. R. 5 Q. B. 346, and Articles 101, 103. Where the voyage is prevented by its illegality, back freight may be recoverable where such illegality was not known to the shipowner, but not where it was: tieslop v. Jones (1787), 2 Chit. 550. (i) Article 103.

(j) Cargo ex Argos (1873), L. R. 5 P. C. 134, settling Lord Mansfield's doubt in Christy v. Row (1808), 1 Taunt. 300, at p. 314. See Article 126.

tion (k), or is ready to deliver them, but the consignee does not take delivery within a reasonable time (7).

2. Where a lump sum as freight has been stipulated for, and he has delivered, or is ready to deliver, some part of such goods (m).

3. Where, the necessity of transhipment having arisen, he has transhipped, and so caused the goods to be delivered, even though at a less freight than that originally contracted for (n).

4. Where he has been prevented from delivering the goods solely by the default of the freighter, as in refusing to accept delivery at the port of destination (0), or in requiring delivery of the goods at an intermediate port (p), or in refusing to name a safe port to which the ship can proceed, and enter (q).

Case 1.-F. shipped cement under a bill of lading :-" Freight to be paid within three days after the arrival of ship before the delivery of any portion of the goods specified in this bill of lading." The vessel arrived, but on the day of arrival a fire accidentally arose which necessitated the scuttling of the ship, and the cement was so acted upon by water as to cease to exist as cement. Held, that the master must be ready to deliver before freight was payable, and therefore no freight was due (r).

Case 2.-F. shipped petroleum on A.'s ship to be delivered at Havre, to be taken by F. within twenty-four hours of ship's arrival at Havre. At H. the port authorities refused to allow the petroleum to be landed or the ship to come to the ordinary place of discharge in the port. The ship was allowed to anchor in the outer port, and F. could have taken delivery of the petroleum there into lighters. F. made no application of any sort for the goods to the ship. Held, that A. had done all that was required on his part, and was entitled to full freight (s).

Case 3.-F. shipped goods from X. to Z. on the French ship S. During the voyage, from sea damage, the vessel put into Y. French law requires a "certificate of innavigability" before the voyage could be abandoned.

(k) Delivery need not be to the consignee, if it is in a manner approved by him see Fenwick v. Boyd (1846), 15 M. & W. 632.

(1) Duthie v. Hilton (1868), L. R. 4 C. P. 138, at p. 143; Cargo ex Argos (1872), L. R. 5 P. C. 134; and per Lord Mansfield, in Luke v. Lyde (1759),

2 Burr. 883.

(m) Vide Article 140.

(n) Shipton v. Thornton (1838), 1 P. & D. 216; Matthews v. Gibbs (1860), 30 L. J. Q. B. 55, is not inconsistent with this, but turns on specific facts; and see Article 103.

(0) Cargo ex Argos, vide supra.

(p) The Bahia (1864), B. & L. 292; Cargo ex Galam (1863), B. & L. 167; The Soblomsten (1866), L. R. 1 A. & E. 293; Luke v. Lyde (1759), 2 Burr., at p. 888.

(4) The Teutonia (1872), L. R. 4 P. C. 171.

() Duthie v. Hilton (1868), L. R. 4 C. P. 138. (8) Cargo ex Argos (1873), L. R. 5 P. C. 134.

Before the legal process of obtaining this certificate was completed, F. arrested the ship, and obtained the cargo without the master's consent. Held, that as the reasonable time allowed the master in which to tranship or repair had not expired, F. had no right to seize the cargo, and was liable for the whole freight (t).

Case 4.-C. chartered A.'s ship to carry a cargo from X. to Z. Unknown to A there was a Respondentia bond on the cargo. On the voyage to Z. the ship was stranded at Y., and while there the cargo was seized by the bondholder and sold, C. not interfering. Held, that as A. was prevented from carrying to Z. by the act of C., he was entitled to full freight to Z. (u).

Case 5.-A German vessel was chartered to proceed to Y. for orders, and thence to a safe port as ordered in Great Britain, or on the continent between Havre and Hamburg. On reaching Y. the ship was ordered to Dunkirk, then safe, but before the ship's arrival there, owing to war between France and Germany the vessel could not safely enter, and accordingly proceeded to Dover. The charterers required her to proceed to Dunkirk, and refused to name any other port, or to pay freight at Dover. Held, that as the charterers had failed to name a port safe on arrival, the ship was discharged from the necessity of completing her voyage, and the shipowner was entitled to full freight at Dover (x).

Article 140.-Lump Freight.

Lump freight is a gross sum stipulated to be paid for the use of the entire ship; it will, therefore, be payable if the shipowner be ready to perform his contract, though no goods are shipped, or though part of the goods shipped are not delivered. If any goods are shipped, some must be delivered to entitle the shipowner to lump freight (y).

(t) The Bahia (1864), B. & L. 292. If the goods owner tenders full freight at an intermediate port, the master is bound to deliver; The Patria (1863), L. R. 3 A. & E. 436. Blasco v. Fletcher (1863), 14 C. B., N.S. 147, turns on a special authority from the master.

(u) Cargo ex Galam (1863), B. & L. 167. See also The Soblomsten (1866), L. R. 1 A. & E. 293.

(x) The Teutonia (1872), L. R. 4 P. C. 171.

(y) The Norway (1865), 3 Moore, P. C., N.S. 245; Robinson v. Knights (1873), L. R. 8 C. P. 465; Merchant Shipping Co. v. Armitage (1873), L. R. 8 C. P. 469; L. R. 9 Q. B. 99. Dr. Lushington in The Norway, 12 L. T. 56, had expressed the opinion that where short delivery of goods was not due to excepted perils, the freighter might deduct pro rata freight for the goods not delivered, though he could not deduct their value, nor could he deduct the freight if the short delivery were due to excepted perils. The Judicial Committee, reversing him on the question of fact, held that the short delivery was due to excepted perils, but also said: "We do not mean to express an opinion that even if the jettison and sale had been attributable to the negligence of the master there ought to be a deduction. Perhaps, in this case, the proper remedy of the shipper would have been by a cress-action Coleridge, C.J., expresses a doubt whether this is correct in Merchant Shipping Co. v. Armitage at L. R. 9 Q. B. p. 107.