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Although there may have been exceptional cases of this description, yet it cannot be accepted as a general truth.

In sea adventures which require formal written or printed contracts, it is far better to adopt and adhere to the customary forms of such documents. These have been construed and sanctioned by the courts; and their construction is well known to the merchant, and cannot mislead. Unequal contracts, being essentially unfair, ought not to be judicially favored; and, generally, all attempts to overreach and take advantage, are likely to be expensive, at least, if not ruinous.

Shipments made in others' vessels, whether they be seeking, freighting, or general ships, ought commonly to be made in obedience to the well-known usages of trade and commerce, for the shipper's benefit.

If the goods be consigned, then the shipment, being made in the customary form, will facilitate and simplify the labors of a consignee; if put on board a chartered ship, then the rights, duties, and privileges of the charterer or others will be familiar to all parties interested; and if the shipment of a small adventure be made in a general ship, then the bill of lading made in the ordinary form, will best secure and protect the rights of both shipper and owner.

In commerce, usage is law; made so by the general consent of commercial men and States; and so recognized by all judicial tribunals, which take cognizance of maritime and mercantile matters. Therefore, to observe the mode of exchange, adhere to the course. of trade and follow the customs of ancient commercial States is not only the safer, but the safest practice. Via trita est tutissima etiam.

358 CHARTER PARTY BY PAROLE

FREIGHT PRO RATA.

Though charter parties and bills of lading are usually reduced to writing, or the ordinary printed forms of both instruments are adopted for use, yet a memorandum for heads of a charter party is sufficient to bind the parties, if duly proved to have been signed or assented to.

Even a charter party by parole has been repeatedly held to be valid in law in the State of Massachusetts. It was first so held by the Supreme Court of that State in 1820, in the case of Taggard et al. v. Loring, 16 Mass. 336; again in 1832, Thompson v. Hamilton, 12 Pick. 428; in 1835, Vinal v. Burrill, 16 ibid. 406; and in 1845, Muggridge v. Eveleth, 9 Met. 236. So also, a sale of a vessel by parole has been held valid in law. Bixby v. Franklin Ins. Co. 8 Pick. 86; Lamb v. Durant, 16 Mass. 336; and 4 Cranch, 48, United States v. Willing.

Under bills of lading and charter parties, the questions of earning and payment of freight have been considered and discussed; and numerous cases are to be found in the books, some of which will hereafter be cited, in which the freighter's liability for full or half freight, or freight pro rata itineris; otherwise quantum meruit has been judicially passed upon.

In a quite recent English authority, the right to pro ratâ freight was amply stated by Dr. Lushington; with a complete knowledge and review of all the former leading authorities. Delivery, notice, and acceptance are principal elements in such a discussion. And in the Soblomsten (1 Adm. & Eccl. Rep. 293), this learned magistrate is reported to have said substantially, that to sustain a claim for pro ratâ freight, there must be such a voluntary acceptance of the goods by their owner, at an intermediate port, as to raise a fair inference that

EARNING AND PAYMENT OT FREIGHT.

359

further carriage of the goods was dispensed with. No freight is payable, if the owner of the cargo is compelled, against his will, to take the cargo at an intermediate port.

Where a vessel is disabled at an intermediate port, the master is allowed a reasonable time to reship or tranship, so as to earn his freight.

The whole freight is payable if, by the default of the owner of the cargo, the master is prevented forwarding the cargo from an intermediate port to its destination.

To justify such claim, the acceptance by the owner of the goods must be voluntary; and so made, as to indicate that the further carriage was intentionally dispensed with.

These points are deemed to be settled by British law, and are so expressly stated to be by Judge Lushington in the case last referred to.

The earning and payment of freight is the primary object of all mercantile contracts made by parties stipulating for the marine transportation of goods. Whatever promotes this primary object is in pursuance of such contract whatever tends to defeat or does absolutely defeat that object, may be viewed either as a breach of such contract or a misfortune. If caused by one party, the other will have, in some form, a claim against him for the contingent damage; if not occasioned by man's agency, or default, but by the act of God, violence of the winds and tempestuous weather, or public enemies, then the damage is attributable to perils of the sea; and the remedy, if any, would be against the underwriter and not the carrier.

And the obligation, in all contracts of affreightment, is mutual; for one party to pay and the other to earn

360 QUESTIONS OF FREIGHT, DISCUSSED AND DECIDED.

freight. Both parties, indeed, propose the earning of freight; if then, through the default of the freighter, none is earned, the ship-owner may recover compensation for such loss, and the damages would be according to the ascertained intention of the parties, and not according to what is reasonable; while the recognized measure of damages should be such as would be least burthensome to freight, and most profitable to the owner; subject, however, to those exceptions which are specified in the contract.

In all the varied discussions upon the subject of freight, many points have incidentally arisen; such as the character and description of freight earned, whether full or half, gross or partial, lump or pro ratá, freight; the nature of the contract and intention of the parties; perfect or incomplete performance; careless or safe carriage, in a tight, stanch, and strong, or unseaworthy vehicle; with good stowage and no leakage or the reverse; delivery in good order and condition or the reverse; with or without interruption, vî majore, as the closing of ports, stress of weather, war, blockade, or capture or shipwreck; suspension, detention, delay, demurrage, or other retardment of the voyage; seeking and entering a port of refuge, without duly notifying the shipper, or asking for instructions or advice, as to the expediency of reshipping, transhipping, or selling the cargo, in order to make certain the completion of the voyage, as nearly as practicable.

With a view to this result, very much depends upon the fidelity and sound judgment of the master, who, in an emergency, is ever the representative of the shipowner, as his constructive agent. Therefore, if a master is in fault and fails to do what is, on the whole, the best

AS TO OWNER'S LIABILITY FOR MASTER'S DEFAULT. 361

for all concerned, the blame attaches to his employer or the ship-owner; and against him, accordingly, as a carrier, a right to corresponding damage would ensue to the freighter or shipper.

Notwithstanding all persons, as a generic term or definition, may be called freighters, who are liable to pay freight; still the expression, freighter or shipper, is purposely employed to designate the distinction that may subsist between those who hire and ship by charter parties, and such as hire and ship by bills of lading, or ship only small adventures, by parol contracts or informal agreement.

Sometimes attempts are made, by way of defence, to cast the liability upon an unauthorized agent, in order to exempt a principal from responsibility. The English cases were elaborately reviewed by C. J. Shaw in Blanchard et al. v. Page et al. (8 Gray, 293); that case contains a precise description and full discussion of the bill of lading, as affected by agency, express or implied; and after a partial review of the leading cases, that learned magistrate says: "The result is that the contract for carriage is between the shipper and ship-owner, and that an action for damages to the goods, on the nondelivery thereof, on the contract, must regularly be brought by the shipper; or if, in fact, he be acting as an agent for another person, not named in the bill of lading, then by such principal, on the contract made in his behalf; and that when an action is held to lie by any other persons for damage to the goods, it is through some derivative, incidental, or collateral promise or duty, and not on the original promise and undertaking for the safe carriage."

Many other American authorities will be cited.