not fully laden the ship. And if a certain sum be stipulated for every ton, or other portion of the ship's capacity, for the whole voyage, the payment must be according to the number of tons, &c. which the ship is proved capable of containing, without regard to the quantity actually put on board by the merchant (ƒ). On the other hand, if the merchant has stipulated to pay a certain sum per cask or bale of goods, the payment must be in the first place according to the number of casks or bales shipped and delivered (g), and if he has further covenanted to furnish a complete lading, or a specific number of casks or bales, and failed to do so, (f) Roccus, not. 72. 75.

(g) Roccus, not. 73. 75.

immediately, he would suffer the plaintiff to proceed in the sloop (of which the defendant was master) as a passenger on the voyage, and to load on board for transportation, merchandize to the value of $600; and that the defendant would provide meat, drink, &c. for the plaintiff during the voyage ;" and the plaintiff put on board goods to the amount of $600, and embarked, and the sloop after being at sea two days, sprung a leak and was obliged to return, and was wrecked and lost on her return, the Court held that the money could not be recovered back. See the elaborate opinion of Kent, Chief Justice, from which the foregoing remarks are principally extracted.

In 2 Show. 291. a dictum is reported of Lord Chief Justice Saunders, which would seem to imply that advance money for freight was in no event to be refunded. See also the opinion of Chambre J. in Blakey v. Dixon, 2 Bos. & Pull. 321.

If freight or passage money be advanced, and the party is guilty of delay or neglect, he is not entitled to a return, though he has not received the benefit of the contract. See note in Giles v. Brig Cynthia, 1 Peters. Adm. Rep. 207.

he must make good the loss, which the owners have sustained by his failure, to be settled, in case of disagreement, by a jury, who will take all the circumstances into their consideration (1). Where a ship hired to go beyond sea, to fetch home a cargo for which a certain rate per ton was to be paid, (nothing being payable for the outward voyage,) was forced to return in ballast, the merchant's factor having no goods to put on board, the Court of Chancery decreed payment [275] of the freight (h). (2)

If an entire ship be hired, and the burthen thereof expressed in the charter-party, and the merchant cove

(h) Westland v. Robinson, cited 2 Vern. 212.*

(1) And if the master, in consideration of freight to be paid him at a certain rate per ton for the goods, agrees to load a complete cargo and proceed therewith to the port of delivery, he will be liable to pay damages if he loads a short cargo only. Atkinson v. Ritchie, 10 East. Rep. 530. But he may nevertheless maintain an action for the recovery of the freight of the short cargo delivered; for in such a case the delivery of a complete cargo is not a condition precedent. Ritchie v. Atkinson, 10 East. 295. And the neglect to load a complete cargo, is not excused by a bona fide conduct in quitting the port of loading under a well grounded apprehension of a hostile embargo and seizure. 10 East, Rep. 530.

(2) If a merchant send the vessel of another for a cargo to a designated port and obtains none, he who hired the ship must pay, "empty for full." Giles v. Brig Cynthia, 1 Peters. Adm. Rep. 203, 207. Beawes, 110.

• See Blight v. Page, post. 407.

nant to pay a certain sum for every too, &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 (1). 3. Io 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 understood 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

(1) Lady James v. E. I. Company, 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 succeed

ed. 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 (o).

(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 destination, and so the contract for conveyance is not strictly performed. Thus, if part of the cargo be thrown overboard 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

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.

(7) Roccus, not. 89. French Or. dinance, 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.