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SHORT DELIVERY AND FREIGHT.

Case. A ship was chartered to lead a full cargo, proceed to Z. and there deliver the same on being paid "a lump freight of £315.” On the voyage, part of the cargo, properly loaded, was lost through perils of the Held, that on delivery of the remainder, the full freight of £315 was

sea.

payable (z).

Article 141.-Full Freight for delivery of damaged Goods, or for short delivery.

The shipowner will be entitled to full freight :

1. If he is ready to deliver in substance at the port of destination the goods loaded, though in a damaged condition. The freighter will not be entitled to make a deduction from the freight for the damage, but will have a separate cause of action for it, if it was not caused solely by excepted perils, or by the vice of the goods themselves. The question is whether the substance delivered is identical with the substance loaded, though it may have deteriorated in quality (a).

Case 1.-Coal shipped under a charter was by the negligence of the master so deteriorated in quality as not to be worth its freight. The charterer therefore abandoned it to the shipowner and claimed to be discharged from freight. Held, he was not entitled to abandon, and was liable for the whole freight, his remedy being by cross-action (b).

Case 2.-Bricks were shipped under a charter; by the master's negligence they arrived as brickdust. Held, the freighter was liable for the full freight, and had his remedy by cross-action (c),

2. On a contract for a lump sum as freight, the shipowner is entitled to full freight, though he delivers less goods than the quantity named in the bill of lading, if he delivers all that were loaded (d). Statements of contents or

(z) Robinson v. Knights (1873), L. R. 8 C. P. 465.

(a) Dakin v. Oxley (1864), 15 C. B., N.S. 646, 1er Willes, J., at pp. 664 et seq.; Melhuish v. Garrett (1858), 4 Jur., N.S. 943; Shields v. Davis (1815),

6 Taunt. 65.

(b) Dakin v. Oxley, vide supra.

(c) Melhuish v. Garrett, vide supra. The distinction between this case and that of Duthie v. Hilton (1868), L. R. 4 C. P. 138, where cement was affected by water, so as to become a solid mass, and it was held that no freight was due, is, I suppose, that the substance there was something different from the substance loaded, though the brickdust and the solid cement would seem equally useless to the shipper. Willes, J., in Dakin v. Oxley, at p. 667, puts the question thus: "What was the thing for the carriage of which freight was to be paid, and whether that thing, or any and how much of it has substantially arrived."

(d) Davidson v. Gwynne (1810), 12 East, 381; Blanchett v. Powell (1874), L. R. 9 Ex. 74; Meyer v. Dresser (1864), 16 C. B., N.S. 646; The Norway (1865),

weight contained in the bill of lading are binding against the shipper or consignee for the purposes of freight, if the goods are delivered as received (e).

Case 1.-A bill of lading showed 300 tons to be shipped; only 217 tons were delivered. On proof that no more had been loaded; held, that the whole freight was due (ƒ).

Case 2.-A ship was chartered to pay freight at 7s. per quarter delivered to consignee, but, if any part was delivered damaged, freight should be paid at captain's option, either on invoice quantity loaded as per bill of lading, or half freight on damaged portion. Eighty quarters were damaged, and the captain elected to receive full freight on the bill of lading amount. This was "2368 quarters, quantity and quality unknown," but only 2266 quarters were delivered. Held, that the shippers were liable to pay on the bill of lading amount (g).

Article 142.-Freight pro rata for short delivery.

If the shipowner, contracting to load a full cargo, only loads and carries part of it (h), or if, having loaded a full cargo, he only delivers part of it, he will, in the absence of a stipulation for lump freight (i), only be entitled to freight pro rata on the quantity delivered; and the freighter can counter-claim for short delivery, not solely caused by excepted perils, or the vice of the goods themselves (k).

Case. A ship was chartered to proceed to X. and there load a complete cargo of hemp, and proceed to Z. and deliver the same on being paid

3 Moore, P. C., N.S. 245; Jessel v. Buth (1867), L. R. 2 Ex. 267. By express agreement the cargo owner may have a right to deduct the cost of cargo short delivered from the freight, as in S.S. Garston v. Hickie, Borman & Co. (1886), 18 Q. B. D. 17, where the clause was: "less cost of cargo delivered short of bill of lading quantity."

(e) Tully v. Terry (1873), L. R. 8 C. P. 679. See also Covas v. Bingham (1853), 2 E. & B. 836. It may by agreement be made binding as against the shipowner: Lishman v. Christie (1887), 19 Q. B. D. 333, where the clause was: "the bill of lading to be conclusive evidence of the quantity received, as stated therein."

(f) Blanchet v. Powell, vide supra.

(g) Tully v. Terry, vide supra. See also Jessel v. Bath (1867), L. R. 2 Ex. 267. (h) Ritchie v. Atkinson (1808), 10-East, 295.

(1) Willes, J., suggests in Dakin v. Oxley, vide sub, an exception if the delivery of the whole cargo is made a condition precedent to the payment of any freight; but such a case is believed never to occur in practice.

(k) Dakin v. Oxley (1864), 15 C. B., N.S. at p. 665; The Norway (1865), 3 Moore, P. C., N.S. 245; Spaight v. Farnworth (1880), 5 Q. B. D. 115; as to French law, see Blanchet v. Powell (1874), L. R. 9 Ex. 74; as to Prussian law and usage, see Meyer v. Dresser (1864), 16 C. B., N.S. 646.

freight at £5 per ton. A complete cargo was not loaded. Held, that the shipowner could recover freight pro rata on the quantity delivered, and the freighter had a cross-action for failure to load a complete cargo (1).

Article 143.-Freight pro rata for delivery short of place of destination.

Where the shipowner delivers the goods to the merchant short of the port of destination, he can only claim freight proportional to the amount of voyage completed, known as freight pro rata itineris peracti, or freight pro rata, if an express or implied agreement to that effect exists with the merchant (m).

Such an agreement will not be implied from the mere fact that the merchant receives his goods at the request of the shipowner at an intermediate port (n).

To justify a claim for pro rata freight there must be such a voluntary acceptance of the goods by their owner, at a point short of their final destination, or such a dealing, or neglect to deal with them there, as to raise a fair inference that the further carrying of the goods, (the shipowner having a right to carry them further,) was intentionally dispensed with by the goods owner (o).

Thus where the goods are arrested, and the goods owner, knowing of their arrest, takes no step to release them, and allows them to be sold, a claim for pro rata freight arises (p).

(1) Ritchie v. Atkinson (1808), 10 East, 295.

(m) Osgood v. Groning (1810), 2 Camp. 466; The Newport (1858), Swabey, 335; Luke v. Lyde (1759), 2 Burr. 882; Dakin v. Oxley (1864), 15 C. B., N.S. 646, at p. 665.

(n) The Soblomsten (1866), L. R. 1 A. & E. 293; Cook v. Jennings (1797), 7 T. R. 381; Metcalfe v. Brit. Iron Works (1877), 2 Q. B. D. 423; Thornton v. Fairlie (1818), 8 Taunt. 354.

(0) Osgood v. Groning, vide supra; The Newport, vide supra; Christy v. Row (1808), 1 Taunt. 299; Liddard v. Lopes (1809), 10 East, 526; Mitchell v. Darthez (1836), 2 Bing. N. C. 555.

(P) The Soblomsten, vide supra: Lord Mansfield's remark in Luke v. Lyde, vide supra, at p. 888, that "If the merchant abandons all, he is excused freight, and he may abandon all though they are not all lost," must be read with the comments of Willes, J., in Dakin v. Oxley, vide supra, at p. 665, who substitutes “decline to accept" for "abandon "; in which case the goods owner, by declining to accept his goods short of the place of destination at pro rata freight will compel the master either to carry or send them on at the full freight (see Articles 103, 138, 139), 、 or to give them up to their owner there, without requiring any freight.

But where the shipowner has no longer a right to carry on, as where he abandons the ship and cargo, or where he delays repairs or transhipment beyond a reasonable time, the goods owner, who receives his goods, will not thereby give the shipowner any claim for freight pro rata (q).

A sale by the master, though justifiable in the interests of the cargo, gives him no claim for pro rata freight, if the goods owner has not been consulted, whether such consultation was possible or not (r), or, having been consulted, has not acquiesced (s).

Case 1.-A ship was chartered from X. to Z., but was prevented from reaching Z. by "restraints of princes." The consignees requested the master to deliver at Y. into their lighters, and he delivered part of the cargo there. Held, that freight pro rata was due for the part of the cargo delivered at Y. (t).

Case 2.-A chartered vessel on the voyage became disabled, and was on October 2 towed into an English port, where she and the cargo were arrested in a salvage suit on October 7. The master took the necessary steps to defend the suit, but on October 24 abandoned the vessel; the owners of the cargo had been informed of the suit, and of the probable sale of the cargo, but gave no instructions. The cargo was sold by the order of the Court. Held, that the owners of the cargo by their inaction had waived their right to have the voyage completed, at a time when the master had not lost his right to tranship, and that the cargo owners were therefore liable to pay pro rata freight (u).

Case 3.-A ship was chartered to sail from X. to Z.; owing to restraint of princes she was unable to proceed, and put back to Y.; the charterers refused to accept the cargo at Y.; the shipowner unloaded it after notice to the charterers, and it was sold by consent without prejudice to questions in dispute. Held, that there was no liability in the charterers to pay freight pro rata (x).

Case 4.-A ship was chartered to proceed to Taganrog and deliver cargo.

(1) The Kathleen (1874), L. R. 4 A. & E. 269; The Cito (1881), 7 P. D. 5 (C.A.); The Leptir (1885), 52 L. T. 768.

(r) Vlierboom v. Chapman (1844), 13 M. & W. 230; Hopper v. Burness (1876), 1 C. P. D. 137; Acatos v. Burns (1878), 3 Ex. D. 282 (C.A.).

(s) Hill v. Wilson (1879), 4 C. P. D. 329. To render himself liable to pro rata freight, the goods owner, having had an option of having the goods sent on to their destination, or of accepting them at the intermediate port, must accept the goods at the intermediate port: Hill v. Wilson, at p. 335. See also Blasco v. Fletcher (1863), 14 C. B. N.S. 147. Semble, however, that while the captain must protect the interests of the goods, he should also protect the interests of the ship, and should not let the goods go without the payment of pro ratu freight. (t) Christy v. Row (1808), 1 Taunt. 299.

(u) The Soblomsten (1866), L. R. 1 A. & E. 293. Semble, the shipowner was entitled to full freight, as the master, being entitled to tranship, was prevented by the default of the cargo owners; see The Bahia (1864), B. & L. 292. The case cited is distinguishable from such cases as Hopper v. Burness (1876), 1 C. P. D. 137, as there the sale was by the master; here the master was in no way responsible for it.

(x) Liddard v. Lopes (1809), 10 East, 526.

S

Owing to ice in the Sea of Azof she could get no further than Kertch, 300 miles by sea from T., and would have had to wait till the spring to complete her voyage. The captain proposed to discharge the cargo; the consignees objected. The captain delivered the cargo to the custom-house at Kertch, claiming a lien on it for freight; the custom-house gave it up to the consignees, who gave the captain a receipt for it, but declined to pay freight. Held, that the shipowner was not entitled to full freight, for he had not completed the voyage, nor to pro rata freight, for there was no express or implied contract to pay it (y).

Case 5.-C. chartered a ship to carry a cargo from X. 10 Q. and deliver it; to load another cargo at Q. and carry it to Z., the freight for the voyage out and home, payable on final delivery of the cargo, to be £1300. The ship reached Q. and discharged; she then loaded a cargo and proceeded to Z., but on the voyage suffered great damage and put into Y., where the ship and one-third of the cargo were abandoned. The captain left for England, leaving instructions with the vice-consul to forward the remainder of the hides to Z., and they were forwarded. Held, that C. was liable to pay freight pro rata from Q. to Y.; that he was not liable for freight from X. to Q.; nor could the shipowner claim freight from Y. to Z., as the viceconsul and captain in their combined action had acted as agents of C. and not of the shipowner (z).

Case 6.-A ship on a voyage to Z. was, owing to the perils of the sea, abandoned by her crew. She was found derelict by another ship, which brought her into an English port. Held, that upon satisfying the cargo's liability to the salvors the cargo owners were entitled to their goods without payment of any freight, the contract of affreightment being at an end by justifiable abandonment of the ship, and the shipowner having therefore no right to carry on by transhipment (a).

Case 7.-A ship, S., on a chartered voyage met with storms, and signals of distress were made to the ship R. The S.'s master and crew went on board the R., but without taking clothes or baggage; on seeking to return to the S. they were not allowed; the master of the R. sent some of his own crew on board the S. and the S.'s crew helped to navigate the R. Held, that there was no such abandonment as put an end to the contract of carriage (as there was either no abandonment or an unjustifiable one); that the shipowners were therefore entitled at least to pro rata freight, if the consignees required delivery of the cargo (b).

Case 8.-A vessel, chartered to carry coals from X. to Z., by perils of the sea required repairs at Y.; to effect this the captain justifiably sold part of the cargo at a higher price than he could have obtained in Z. Held, that as the cargo owner had not acquiesced in the sale no claim for pro rata freight to Y. could be made against him (c).

() Metcalfe v. Britannia Ironworks Co. (1877), 2 Q. B. D. 423. See also Castel v. Trechmann (1884), 1 C. & E. 276.

(z) Mitchell v. Darthez (1836), 2 Bing. N. C. 555.

(4) The Cito (1881), 7 P. D. 5: see also The Kathleen (1874), L. R. 4 A. & E. 269; Curling v. Long (1797), 1 B. & P. 634. On rights of underwriters to freight, see Hickie v. Rodocanachi (1855), 4 H. & N. 455; Miller v. Woodfall (1857), 8 E. & B. 493.

(b) The Leptir (1885), 52 L. T. 768. Semble, that if the owners were willing to tranship and carry on, the consignees were not entitled to their goods without full freight being paid. In this case the suit was by salvors; the shipowners put in no appearance, and would seem to have abandoned all intention of carrying on, in which case they would have no right to any freight.

(c) Hopper v. Burness (1876), 1 C. P. D. 137.