Part IV. rate of exchange upon London free of commission; and the remainder to be paid on final delivery of the homeward cargo in cash. The vessel sailed from Portsmouth, and the history of the voyage is detailed in the judgment of the Court of Common Pleas. "In this case," said Chief Justice TINDAL, "two questions arise: first, whether the plaintiff is entitled to recover the full freight agreed to be paid by the charter-party; and, secondly, if not entitled to recover the full freight, whether he is entitled to recover any, and what freight, pro rata itineris. First, in order to entitle the plaintiff to recover the full freight, he must establish that he has performed the voyage prescribed by the charter-party. The first part of the voyage was duly performed by the arrival of the ship at Buenos Ayres, and a destination for the accomplishment of the homeward voyage was given by the freighter there, who appointed Gibraltar as the port of discharge. But the plaintiff never performed that homeward voyage, either in the ship mentioned in the charter-party, or in any other. The original ship and about one-third of the cargo having been lost by the perils of the seas, the remainder of the cargo was left at the island of Fayal by the master, who on the 12th of July sailed in another vessel for England, having left instructions with the vice-consul at Fayal to forward the remainder of the cargo (about two-thirds) by the earliest opportunity to Gibraltar; the master having been wrecked on the next day, returned to Fayal, and remained there until the 24th of July, when he again sailed for England, having on the 23rd addressed a letter to the vice-consul, stating his having been informed of the expected arrival of a vessel originally destined for Newfoundland, and recommending the vice-consul, if he could not obtain a reduction of 4007. for the freight, to give that sum for the conveyance of the remainder of the cargo to Gibraltar, rather than an opportunity of sending the cargo forward should be lost. No authority appears to have been given to the vice-consul to make any contract for the hire of a vessel on account of the owners of the Jane. The master of the Jane certainly did not make any, nor did he personally make provision for the conveyance of the remainder of the cargo to its destination, much less superintend its transhipment, or accompany it to the port of discharge. Before his departure from Fayal, no vessel of sufficient capacity to convey it had arrived at Fayal; but on the 29th of July such a vessel had arrived, and the vice-consul chartered the vessel on behalf of the owners of the cargo of the June, at a freight of 3601. for the conveyance of goods to Gibraltar. Under this charter-party, the vessel so hired by the vice-consul on behalf of the owners of the cargo sailed to Gibraltar and delivered it to them, who received and paid freight and charges 3781. Under these circumstances, it appears to us that the goods which were so left by the master of the Jane, at Fayal, having been forwarded to Gibraltar by the vice-consul, acting in the name and on behalf of the owners of the cargo, and at their expense, cannot be said to have been carried to their destination by the owner of the Jane, in fulfilment of the charter-party entered into with the defendants, and consequently that the freight stipulated to be paid by Chap. 9. the charter-party has not been earned. "The next question is, whether anything in the nature of freight is recoverable by the plaintiff upon a new and implied contract, founded on meritorious service rendered to the defendants by the plaintiff, in the partial performance of the voyage contemplated, and the acceptance of the goods by them under the circumstances stated in the case. The carriage of the goods from Fayal to Gibraltar not having been the act of the plaintiff, we are of opinion that no claim to freight can be made by the plaintiff for that portion of the voyage. And we are also of opinion that the plaintiff has no right to claim any freight pro ratá itineris for the outward voyage from England to Buenos Ayres. 66 The freight for the entire voyage was a gross sum of 1,300l., of which 2007. was to be paid in England, in cash for the necessary expenses of the vessel in the river Plate, and the residue at Gibraltar, at the current exchange upon London. If the vessel had arrived at Buenos Ayres, and had been lost immediately afterwards, we think that nothing beyond the 2007. paid in London could have been claimed. But as she actually brought from Buenos Ayres to Fayal, on her way to Gibraltar, a considerable portion of the cargo put on board at Buenos Ayres, which portion has come to the hands of the freighters, and been accepted by them, the question arises, Whether the shipowner has not a claim to freight pro ruta for the conveyance of that portion of the goods from Buenos Ayres to Fayal?-and upon the best consideration which we can give to the case we think he has such claim. "We have already said that the goods were forwarded by the viccconsul, acting as the agent of the freighters; but the vice-consul was desired by the master of the Jane to forward them, though not desired to forward them on behalf of the shipowner. The agents of the freighters at Gibraltar have accepted the goods, paid the freight, and thereby recognised the act of the vice-consul as their agent. The case, therefore, must stand in the same position as if the freighters had accepted the goods of the master of the Jane at Fayal, and conveyed them on their own account to Gibraltar; in which case we think that they would be liable to pay freight for that portion of the voyage in respect of the goods accepted. At what rate the freight is to be calculated is the remaining question to be considered, and we are of opinion that the shipowner, under the circumstances of this case, cannot claim any remuneration beyond reasonable freight from Buenos Ayres to Fayal, the amount of which the arbitrator will determine. The freight agreed upon by the charterer was not of an ordinary kind, but a gross sum to be paid in case of the performance of an extraordinary voyage. That voyage has not been accomplished; the voyage was not in its nature divisible, so as to give to the shipowner a claim to any aliquot part upon the performance of a certain portion of the voyage. The claim of the shipowner must, therefore, rest upon an implied contract to remunerate him for service performed, not Part IV. according to the agreement, but a service from which the freighters have received a benefit; and whether, upon the whole, the shipowner has been overpaid or not, will appear when the account is taken by the arbitrator on this principle between the parties." It will be seen, from the report of this case, that it was contended, on the part of the plaintiff, that in chartering another ship, for the conveyance of the cargo from Fayal to its destination, the consul acted as the agent for the shipowner, and that the latter had thereby performed his contract. If the facts of the case had supported that position, it is probable that the plaintiffs would have been considered entitled to the whole freight, as stipulated by the charter-party; but the Court of Common Pleas was of opinion, that the consul acted as the agent, not of the shipowners, but of the owners of the cargo. The former having failed to convey the goods to their destination, was held not entitled to receive the freight for which he had stipulated; and the merchant, who had accepted the goods at a place short of their destination, was considered to have entered into an implied contract to remunerate the shipowner for such service as he had actually performed. In the case of Shipton v. Thornton (a), the plaintiff in assumpsit brought this action for freight, in respect of certain goods and merchandise carried and conveyed from Singapore to London, and there delivered to the defendant, It appeared on the trial, that in January, 1836, the agent of the defendant shipped at Singapore, on board the James Scott, belonging to the plaintiff, certain goods under a bill of lading, by which it was stipulated, "that the goods were to be delivered at the port of London to Richard Thornton, Esq., or his assigns, he or they paying freight for the said goods as per margin. The James Scott proceeded on her voyage with a general cargo, but encountering severe gales was obliged to put into Batavia; and on her arrival there, in consequence of the damage to the ship and cargo, a transhipment was found necessary; and the cargo, including the goods of the plaintiff, was transhipped to the Mountaineer and the Sesostris, and bills of lading were drawn for delivery of the cargoes to William Ellward, Esq., or his assigns, he or they paying freight. On the arrival of the lastmentioned vessels with their cargoes in London, the defendant claimed and obtained both parcels of goods, under the bill of lading per James Scott, but contended that he was only bound to pay freight pro ratá from Singapore to Batavia, and the actual freight per Mountaineer and Sesostris. Lord DENMAN, delivering the judgment of the Court of King's Bench, said: "Upon the trial it appeared that the plaintiff had been paid freight by the James Scott, at the rate originally agreed on, for so much of the voyage as had been performed up to the ship's arrival at Singapore, and for the remainder of the voyage to London, at the rate at which he had contracted for the carriage of the goods by the (a) 1 Per. & Dav. 216; ante, p. 314; Marine Ins. Co., 36 L. J. C. P. 156; 0 Ad. & E. 314. See Kidston v. Empire Matthews v. Gibbs 3 E. & E. 282. Mountaineer and the Sesostris. The action was brought for the difference between the two rates for that portion of the voyage; and it was objected, that for this portion of the voyage, he was not entitled to receive more than he had actually paid; while, on the part of the plaintiff, it was contended that the necessity of the transhipment being assumed, which it must be for the purpose of the argument, the Mountaineer and Sesostris were to be considered as the James Scott; that the master had fulfilled his undertaking in carrying the goods to their destination, and had therefore earned his full freight, while it was a matter of indifference to the owner of the goods whether they had arrived safe by one vessel or the other. No authority, bearing directly on the point, from our own law books, was cited on either side in the argument. It was treated very much as a new point, to be decided on principle, and our own researches have led us to the same conclusion. On the part of the defendant, we were pressed with the impolicy of holding out any temptation to the shipowner or master to make unnecessary transhipments of goods; the inconvenience of any transhipment, whereby the goods themselves run the hazard of damage, the policy of insurance may become questioned, and the owner of the goods, at all events, loses the benefit of a conveyance by that vessel in which he may be supposed to have confidence, and for which, at all events, he has stipulated. All these circumstances, coupled with a consideration of the unprotected state in which his interests arc at a distant port, must certainly be allowed to have great weight. But, after all, these seem to point to a vigilant examination of every case of transhipment, to see that its necessity be well established, rather than to decide the present question. This must turn upon the nature of the contract between the parties, as it is to be collected from our own books, and still more fully, perhaps, from those foreign laws and ordinances, as well as the writings of those jurists to which our courts have been long accustomed to have recourse for guidance on subjects of this nature." His lordship, after an elaborate review of the foreign authorities on the subject of transhipment, for which the reader is referred to a previous chapter of this work (b), delivered the judgment of the court that the plaintiff was entitled to recover the difference he sued for. Chap. 9. 9. When the Right to Freight Commences. [But as the right to freight does not commence until the ship has broken ground and begun the voyage, no partial payment can be claimed for goods laden on board, if, even without the fault of the master, the ship is prevented from actually setting forth on the voyage. And, therefore, in the case of a ship which took on board a cargo in Salt River in Jamaica, at a very great expense to the owners] (b) Ante, p. 311. Part IV. [(who by the usage of the West India trade fetch the cargoes from the shore at their expense), and which actually cleared out for the voyage, but, while waiting for convoy, was cut out of the river by two French privateers; and being afterwards retaken, was carried into Port Royal, where the cargo was sold under an order of the Court of Admiralty, and the proceeds thereof, with the deduction of salvage, paid to the merchants: it was decided that nothing could be claimed of the merchants, although each of the judges expressly recognised the rule of the marine law as to the partition of freight pro rata itineris; the court holding, that in this case there had been no commencement of the voyage, and therefore no freight could be due; and that, as the freight was by the contract the only remuneration of all the services performed by the owners, they were not entitled to any recompense for the expense of taking the goods on board (a).] 10. Of Entire, Divided, and Intermediate Voyages. Freight how payable. [It often happens that a ship is hired by a charter-party to sail from one port to another, and from thence back to the first: as, for instance, from London to Leghorn, and back from thence to London, at a certain sum to be paid for every month or other period of the duration of the employment. Upon such a contract, if the whole is one entire voyage, and the ship sail in safety to Leghorn, and there deliver the goods of the merchant, and take others on board to be brought to London, but happened to be lost in her return thither, nothing is due for freight, although the merchant has had the benefit of the voyage to Leghorn; but if the outward and homeward voyage are distinct, freight will be due for the proportion of the time employed in the outward voyage (b). Upon this point Malyne mentions a remarkable case of five ships, in which he himself was interested as one of the merchant-freighters. The whole five were freighted out from this country for Leghorn and Civita Vecchia, and back from those places. They all performed their outward voyage, but before any part of the homeward cargo was shipped, they all set sail and came away, through fear of being taken by the galleys of Don Andrea Doria, who intended to surprise them, the Grand Armada being then preparing in Spain. Two of the ships had waited for their lading the whole time stipulated by their charterparties, and the masters had made their protests against the factors who should have laded them. These two, says the author, were by the law of the Admiralty adjudged to have deserved their whole freight. Two others, not having waited the stipulated time, could not be found] (a) Curling v. Long, 1 Bos. & Pul. 634. Bright v. Cowper, with a reference to Brownlow, in whose report the point does not appear.] |