nant to pay a certain sum for every ton, &c. of goods which he shall lade on board, but do not covenant to furnish a complete lading, the owners can only demand payment for the quantity of goods actually shipped (i).

3. In all the instances before mentioned the owners take upon themselves the chance of the long or short duration of the voyage. But if the merchant engage to pay a certain sum for every month, week, or other portion of the voyage, in this case, the risk of the duration falls upon the merchant: and if no time be fixed for the commencement of computation, the computation will begin from the day, on which the ship breaks ground, and commences the voyage, and will continue during the whole course of the voyage, and during all unavoidable delays not occasioned by capture (k), or by such circumstances as give rise to the general average or contribution, that will be treated of in a subsequent chapter.

In this case of the payment of freight, as in [276] other mercantile contracts, a month is to be un

derstood of a calendar not a lunar month (1), 4. The time and manner of payment of freight are frequently regulated by express stipulations in a charterparty, and when that is done, the payment must be according to the agreement. If there be no express stipulation, we have already seen that the master is not bound to part with the goods, until his freight is paid; and if by the regulations of the revenue the goods are to be landed and put into the King's warehouse, if the duties are not paid, the master may enter them in his own

(i) Lady James v. E. I. Campany, coram Kenyon, Ch. J. at Guildhall, Sit. p. Mich. Term. 1789. Roccus,

not. 75.

(k) Ante, p. 272. and note, ibid. (1) Jolly v. Young, 1 Esp. N. P. cases, 186.

name, and thereby preserve his lien (1). At the trial of an action brought for freight on a charter-party, by which it was agreed that the goods should be delivered at London agreeably to the bills of lading, and by the bills of lading they were to be delivered to a third person on his payment of the freight, and in fact they were delivered to him, but he refused to pay the freight, because the merchant the defendant, who was the consignor, was indebted to him to a greater amount: Lord Kenyon held that the freight could not be recovered of the consignor, because the master ought not by the terms of the contract to have delivered the goods without receiving the freight from the consignee (m). But this opinion of his Lordship, was afterwards over-ruled in the Court of King's Bench and a [277] new trial ordered, at which the plaintiff succeeded. If a consignee receive goods in pursuance of the usual bill of lading, by which it is expressed that he is to pay the freight, he by such receipt makes himself debtor for the freight, and may be sued for it (n).

If a consignee, known as such to the master, sell the goods before they are landed, he and not the buyer is liable to be sued for the freight, although the buyer enter the goods at the custom-house in his own name (0).

(m) Penrose & others v. Wilkes, Sit. p. Hil. Ter. 1790, coram Kenyon, Ch. J. at Guildhall.

(n) Roberts v. Holt, 2 Show. 443. This was probably the case of a general ship.

(0) By Lord Kenyon at Nisi Prius. Artaza v. Smallpiece, 1 Espin. N. P. Cas. 23. See also The THERESA BONITA, De Jong. 4 Rob. A. R: 236.

(1) And if the master in the course of the voyage is compelled to pay duties in order to obtain a clearance of his cargo on freight, he may bind the owner of the ship to the payment. Milward v. Hallet, 2 Cain. Rep. 77. Kent J. dissenting.

Neither does such entry of goods at the custom-house, made by a person, who is only agent for the consignor, and known to the master to be acting in that character, render such agent liable to be sued for the freight (p),

5. In some cases freight is to be paid, or rather an equivalent recompense made to the owners, although the goods have not been delivered at the place of destina tion, and so the contract for conveyance is not strictly performed. Thus, if part of the cargo be thrown over board for the necessary preservation of the ship and the remainder of the goods, and the ship afterwards reach the place of destination, (q), the value of this part is to be answered to the merchant by way [278] of general average, and the value of the freight

thereof allowed to the owner in the manner, that will be explained hereafter. So if the master be compelled by necessity to sell a part of the cargo for victuals or repairs, the owners must pay to the merchant the price, which the goods would have fetched at the place of destination, and therefore are allowed to charge the merchant with the money, that would have been due, if they had been conveyed thither (r).

The French Ordinance also directs the payment of freight in another instance, which I do not find provided for in any other Ordinance, or mentioned by any author except with reference to this particular article of the French Ordinance, which is as follows: "If it hap(6 pen that commerce be prohibited with the country, to "which a ship is in the course of sailing (en route), and "the ship be obliged to return with its lading, there

(p) Ward v. Felton, 1 East's Rep.

K. B. 507.

(q) Roccus, not. 89. French Ordinance, liv. 3. tit. 3. fret. art. 13.

(r) French Ordinance, liv. 3. tit. 3. fret. art. 14. Ordin. of Wisbuy, art. 35. and 69. ante, part 3. ch. 3. sect. 10.

"shall be due only the freight outward, although the

ship be hired out and home" (s). The commentators on this article agree that the freight outward must be paid, if the ship be freighted outward only (t) (1).

6. If in a time of war a neutral vessel, carrying goods belonging to the subjects of one of [279] the belligerent powers, be taken by those of the

other (in which case the goods are lawful prize, but the ship is to be restored), the captor pays the whole freight, because he represents the enemy, by possessing himself of the enemy's goods jure belli; and although the whole freight has not been earned by the completion of the voyage, yet, as the captor, by his act of seizure, has prevented its completion, his seizure shall operate to the same effect as an actual delivery of the goods to the consignee, and shall subject him to the payment of the full freight (u). This however is to be understood of such goods only, as a neutral vessel may

(s) French Ordinance, liv. 3. tit. 3. fret. art. 15.

(t) Valin, tom. 1. p. 657. Pothier,

Ch. Partie, num. 69.

(u) The COPENHAGEN, Mening, 1 Rob. A. R. 289.

(1) And where a ship arrived at the port of destination, but her cargo was prohibited from entry, the Court held, in conformity to the doctrine of Valin and the French ordinance, that freight was earned for the outward voyage. Morgan v. The Insurance Company of N. America, 4 Dall. 455. And the court said that it was not like the case of a ship prevented from entering a port in consequence of a blockade, for there the voyage is not performed, and it is imposible to say certainly that it would be safely performed, if there were no blockade. id. ibid. And in case of blockade of the port of destination no freight would be due. Scott v. Libby, 2 John. Rep. 336.

convey by the law of nations, and of a trade ordinarily allowed to the neutral nation by the government, to whose subjects the goods belong. If the goods are contraband according to the law of nations, such as naval stores, &c. no freight is to be paid by the captor (x); and this whether the master know the quality of the goods or no; for in time of war he is bound to know the contents of his cargo, and cannot be permitted to aver that he was ignorant of them (y); nor is any freight to be paid by the captor, if the ship is employed in bringing the produce of the colony of a belligerent

power to the mother country (2), or in the [280] coasting trade between one port and another of

the same country (a), or in carrying the goods, even of neutrals, directly from the mother country to its colony (b), or from one hostile nation to the colony of another hostile nation in alliance with it (c), if these trades were not, in time of peace, open to the neutral nation, whose ship is so employed; because, in all these cases, it is evident, that the trade is opened in the time of war merely for the convenience of the belligerent power, and to relieve that power from a part of the difficulties occasioned by the war; and the neutral vessel so employed, thereby furnishes direct assistance to the belligerent power. But as trade from a port of one nation to a port of another is in general open to all countries, freight is to be paid to the owners of a neutral ship employed in carrying the goods of an enemy from

(x) The MERCURIUS, Meincke, id. 288.

(y) The OSTER RISOER, Jurgenson, 4 Rob. A. R. 199.

(2) The REBECCA, Moore, 2 Rob. A. R. 101. See also the AMERICA, Sherborne, id. vol. 3. p. 36.

(a) The EMANUEL, Soderstrom,

1 Rob. A. R. 296. and the MERCURIUS there cited.

(b) The IMMANUEL, Eysenberg, 2 Rob. A. R. 186. and the ANNE, Lord, id. vol. 3. p. 91. note a. and the NANCY, Joy, id. p. 82.

(c) The ROSE, Young, 2 Rob. A. R. 206.