if it occur from a peril of the seas and without any default of the master, as by capture and recapture, embargo, or any thing of the kind, if the vessel finally arrives, without avoidable delay, with the cargo, at the port of final destination, the whole freight is payable.1

SECTION VIII.

OF THE LIABILITY FOR FREIGHT.

As the usual bill of lading expresses that the goods are to be delivered to A B, "he paying freight thereon," the receiving of the goods under that bill, whether by the original consignee, or any assignee or indorsee of the bill, is evidence of an obligation to pay the freight; 2 and not only the freight, but the demurrage.3

1 Davidson v. Gwynne, 12 East, 381; Beale v. Thompson, 3 B. & P. 405, 420; Moorsom v. Greaves, 2 Camp. 627; The Racehorse, 3 Rob. Adm. 101; The Hoffnung, 6 Rob. Adm. 231; Havelock v. Geddes, 10 East, 555; Ripley v. Seaife, 5 B. & C. 167; Bergstrom v. Mills, 3 Esp. 36; Hadley v. Clarke, 8 T. R. 259; Baylies v. Fettyplace, 7 Mass. 325; M'Bride v. Mar. Ins. Co. 5 Johns. 299, 308. See also, cases ante, p. 159, note 2.

2 From the earlier cases it would be inferred that the fact of an acceptance of the goods by the consignee, or his indorsee, under a bill of lading, containing the clause in question, was a legal presumption that the consignee or his indorsee had made a contract to pay the freight. Dougal v. Kemble, 3 Bing. 383; Cock v. Taylor, 13 East, 399; Scaife v. Tobin, 3 B. & Ad. 523; Jesson v. Solly, 4 Taunt. 52. In Merian v. Funck, 4 Denio, 110, the court said: "It is well settled that when the goods, by the terms of the bill of lading, are to be delivered to the consignee, or to his order, on payment of freight, the party receiving them, whether a consignee or an indorsee, to whom the bill of lading has been transferred by the consignee, makes himself responsible for the payment of freight." See also, Smith v. Flowers, 6 Mart. La. 12; Shaw v. Thompson, Olcott, Adm. 144. In Sanders v. Vanzeller, 4 Q. B. 260, it was held, that the reception of the goods by a consignee, or an indorsee, under the indorsement, would be evidence for the jury, from which they would be warranted in finding that the consignee or indorsee thereby contracted to pay freight, but that no contract would arise by implication of law. See also, Zwilchenbart v. Henderson, 9 Exch. 722, 25 Eng. L. & Eq. 560; Möller v. Young, 5 Ellis & B. 755, 34 Eng. L. & Eq. 92, reversing the same case in the Queen's Bench, 5 Ellis & B. 7, 30 Eng. L. & Eq. 345; Kemp v. Clark, 12 Q. B. 647.

* Jesson v. Solly, 4 Taunt. 52; Harman v. Gandolph, Holt, N. P. 35; Harman v. Clarke, 4 Camp. 159; Harman v. Mont, id. 161; Stindt v. Roberts, 5 Dowl. & L. 460. In Wegener v. Smith, 15 C. B. 285, 28 Eng. L. & Eq. 356, it was held, that it was a question for the jury whether an indorsee was liable for demurrage,

And if a consignee assigns and indorses over the bill of lading, and the indorsee takes the goods, the original consignee is not bound to pay the freight.1 But the assignee has been held liable in a case where the bill of lading had not the word "assigns" in it.2 The mere receipt of the goods by one actually the owner of them, might lay him under an obligation to pay for bringing them; but not the receipt by one who is not owner, unless he receives them under an authority conditioned to pay the freight.

And one who is only an agent of the consignee and is known to the master to be no more, does not become personally liable by receiving the goods, and entering them at the custom-house in his own name. But if goods are consigned to A, care of B, or to B, for A, "he or they paying freight," etc., B is not personally liable for freight on receiving them. And if one who is actually indorsee of the bill of lading, obtain the goods, not under the bill of lading, but by some other means, as by an order of the consignee, the consignee himself may be liable, but his indorsee would not be liable for freight; unless a custom on his part to take goods in this way and pay freight for them, suffices to raise the implied assumpsit.5 But if he obtain the goods under the

who received the goods under a bill of lading which stated the cargo to have been received "against payment of the agreed freight, and other conditions as per charterparty," and the charter-party contained a provision for demurrage. See also, Smith v. Sieveking, 4 Ellis & B. 945, 30 Eng. L. & Eq. 382; s. c. affirmed in the Exchequer Chamber, 5 Ellis & B. 589, 34 Eng. L. & Eq. 97. It was held, in this case, that a bill of lading, by which goods were deliverable to the consignees, "they paying for the said goods as per charter-party, imposed no liability on the consignees to pay demurrage, according to the charter-party, for a detention of the ship at the port of loading, which occurred before the bill of lading was signed.

1 Cock v. Taylor, 13 East, 399; Tobin v. Crawford, 5 M. & W. 235, s. c. affirmed in the Exchequer Chamber, 9 M. & W. 716; Dougal v. Kemble, 3 Bing. 383; Trask v. Duvall, 4 Wash. C. C. 181; Merian v. Funck, 4 Denio, 110; s. c. affirmed on appeal; 1 How. Ct. App. Cas. 656.

2 Renteria v. Ruding, Moody & M. 511.

3 Ward v. Felton, 1 East, 507.

Amos v. Temperley, 8 M. & W. 798. See also, Grove v. Brien, 8 How. 429. But a contrary decision was given in Canfield v. Northern Railroad Co. 18 Barb. 586. And see Hindsdell v. Weed, 5 Denio, 172.

5 Wilson v. Kymer, 1 M. & S. 157. And in Coleman v. Lambert, 5 M. & W. 502, it was held that, although generally a consignee is not liable for freight when there is no bill of lading, yet if the plaintiff can show prior dealings with him, and that he paid freight on those occasions, this will be evidence that he contracted to pay freight, and he will be held liable.

bill of lading, so as to be liable for the freight, he will continue liable although he have delivered over the goods or their proceeds wholly to the consignee before a demand for freight was made upon him.1

These remarks upon the effect of the bill of lading and an indorsement of it, and receipt of the goods under it, seem to be true and applicable only where there is no charter-party. It would seem, however, to be an obvious and certain conclusion from established principles, that if a master delivers goods to any party, with notice to him that he should look to him personally for freight, and the party accepts the goods and receives them with this notice, he becomes thereby liable. The only ground of exception would be, that this party had, by his bargain, an absolute right to receive the goods, without any payment of freight, and the master, consequently, had no right whatever to withhold them for want of payment.

If a bill of lading expresses that the goods are to be delivered to a consignee, on payment of freight, if the master delivers them without freight being paid, he cannot afterwards fall back on the consignor, if the goods are the property of the consignee. This must be the general rule. But if the consignor alone owns the goods, such a bill of lading would amount to no more than an order of the consignor to his agent to pay the freight for him; and on the failure of the agent to pay the freight, the principal would still be held.

It seems to be well settled that when there is a charter-party, this is evidence of an express contract on the part of the shipper to pay freight; and the clause in the bill of lading respecting freight is inserted for the benefit of the master, and not of the consignor. And where there is no charter-party, but only a bill of lading, it seems that this amounts to, and imports an implied contract on the part of the shipper to the same effect.3

1 Bell v. Kymer, 5 Taunt. 477, 3 Camp. 545.

2 See Moorsom v. Kymer, 2 M. & S. 303.

* Roberts v. Holt, 2 Show. 443; Penrose v. Wilks, Abbott on Shipping, 415; Tapley v. Martens, 8 T. R. 451; Marsh v. Pedder, 4 Camp. 257; Christy v. Row, 1 Taunt. 300; Shepard v. De Bernales, 13 East, 565. In Drew v. Bird, Moody & M. 156, Lord Tenterden said that where there was no charter-party, and the goods were by the bill of lading to be delivered to a party other than the shipper, or to the assigns of such other party, he or they paying freight, the shipper was not liable, if the goods

Sometimes the freight-money is paid in advance, in whole or in part, or other advances are made to the owner of the ship. Then, if the goods are not delivered, or the voyage not performed, under circumstances which would give the ship-owner no right to claim freight if it had not been paid, the question arises whether he is bound to pay it back. But this question, although not unfrequently attended with some difficulty, is a question of fact rather than of law; and the difficulty is not so much one of knowing what the true principles are, as in what· manner they shall be applied.

It is now quite certain, that if the payment be merely a payment of freight in advance, it must be repaid if freight is not earned. And if the sums paid to the master or ship-owner are

were delivered without payment of freight, unless there were some additional circumstances to show a contract between him and the ship-owner. This case was declared not to be law, by Parke, B., in Sanders v. Vanzeller, 4 Q. B. 260, 288. The true rule, which has been universally followed, is laid down in Domett v. Beckford, 5 B. & Ad. 521, where it was held, that the only difference between a case where there was a charter-party, and one where there was not, consisted in this alone, that, in the former case, by the charter-party there was an express contract on the part of the shipper, and in the latter, an implied one. In Blanchard v. Page, S. J. C., Mass., Boston Daily Advertiser, Nov. 25, 1856, a case in which the consignor was the mere agent for shipping the goods, Shaw, C. J., said: “As to the consignor's liability for freight, the consignee refusing to pay the same, and the merchandise being worth less than the freight, it is a difficult question, and it will be sufficient to decide that when it comes directly before us." The law, however, seems to be well settled. If the consignor is not the owner of the goods, he is not liable, but if he is the owner, the clause, relative to the delivery on payment of freight by the consignee, is inserted for the benefit of the master, and the consignor is liable. Barker v. Havens, 17 Johns. 234; Spencer v. White, 1 Ired. 236; Grant v. Wood, 1 Zabris. 292; Hayward v. Middleton, 3 McCord, 121. The same rule applies to a case of demurrage. Harrison v. Spaeth, 23 Law T. 155, 28 Eng. L. & Eq. 132. In Collins v. Union Transp. Co. 10 Watts, 384, it is said that the condition was introduced for the benefit of the consignor. The word not was omitted before introduced by a mistake of the printer. See Layng v. Stewart, 1 Watts &

S. 222.

1 In an anonymous case, 2 Show. 283, Saunders, C. J., is reported to have said: "Advance money paid before, if in part of freight, and named so in the charterparty, although the ship be lost before it come to a delivering port, yet wages are due according to the proportion of the freight paid before, for the freighters cannot have their money." This doctrine is, however, neither sanctioned by the early maritime writers, nor by modern adjudications. See Cleirac, Us et Coustumes de la Mer, p. 42; Ord. de la Marine, du Fret, art. 18; Valin, Com. sur Ord. p. 661; Pothier, Charte-Partie, n. 63; Roccus, n. 80. Some writers are of the opinion that if there is no fault in the master a pro rata freight will be due. Straccha, De Nav. 3, n. 24; Loccenius, De Jure Maritimo, lib. 3, ch. 6, § 11; Roccus, n. 81. In Pitman v.

but loaned to the ship-owner, then they must be accounted for as loans; that is repaid, with deduction of freight that may become due, and no deduction, if no freight becomes due.1 But it is quite as certain that the parties may make a different agreement. The shipper may say, if you will take my goods, I will pay you now, so much money, and you may keep it whether you carry the goods to their destined port or not.

This would, strictly speaking, not be an agreement for freight; but it would be an agreement the parties had a right to make. And it might be proved by, or inferred from, circumstances. As if the ship-owner said, I will take your goods to Havre, and will charge twenty dollars a ton payable there, or fifteen dollars if you will pay it here, it might be competent for a jury to infer that the reason for asking so much less at home, was that the payment was not to be at any risk, but was to remain the shipowner's at all events, and that the shipper paid the money with that understanding.2 But, if the bargain is money for the car

Hooper, 3 Sumner, 50, 66, Mr. Justice Story said: "In the ordinary cases of freight paid in advance, I do not understand, that if the voyage is not performed the owner can, without an express stipulation to the purpose, retain it, but the shipper is entitled to recover it back." See also, Manfield v. Maitland, 4 B. & Ald. 582; Watson v. Duykinck, 3 Johns. 335; Griggs v. Austin, 3 Pick. 20; Leman v. Gordon, 8 Car. & P. 392, per Lord Abinger, C. B.; Brown v. Harris, 2 Gray, 359; Phelps v. Williamson, 5 Sandf. 578; Cope v. Dodd, 13 Penn. State, 33; The Zenobia, Abbott, Adm. 80; Giles v. The Brig Cynthia, 1 Pet. Adm. 203, 206; Howland v. The Brig Lavinia, id. 123, 126; Mulloy v. Backer, 5 East, 316; Gillan v. Simpkin, 4 Camp. 241; The Ship Panama, Olcott, Adm. 343, 361. In Mashiter v. Buller, 1 Camp. 84, the voyage was from London to Lisbon. By the bills of lading freight was payable in London. Lord Ellenborough held that there was a substitution merely of London as the place of payment in the place of Lisbon, but that the performance of the voyage was not dispensed with, and that if freight had been paid on shipment, as the voyage had never been completed, it might have been recovered back. In the case of The Pacific, 1 Blatchf. C. C. 569, the owner of the ship contracted to take the libellant as a cabin passenger from New York to California. Not more than fifty other passengers were to be taken, in order that there might be room for ventilation and exercise. After the passagemoney was paid the libellant went on board, and found that seventy-two cabin passengers were engaged, and that the vessel was thereby overcrowded, and dangerous to health. He therefore refused to go. Held, that he might recover back his passagemoney, and also damages for the breach of the contract. But if the passenger or shipper cause the non-performance of the contract, the passage-money or freight cannot be recovered back. Detouches v. Peck, 9 Johns. 210; Giles v. The Brig Cynthia, 1 Pet. Adm. 207, note; Griggs v. Austin, 3 Pick. 20.

1 Manfield v. Maitland, 4 B. & Ald. 582, 586, per Bayley, J.

2 In Andrew v. Moorhouse, 5 Taunt. 435, the bill of lading stated that the freight