The warranty against deviation is that the vessel will pursue her voyage by the accustomed route without unnecessary delay; though going to a port a little out of the straight course, when it is shown to be the usage of that navigation for vessels to stop by such a port, would not be considered a deviation.

These two warranties apply also to charter parties, and will be treated more fully in that connection.*

MUTUAL REMEDIES OF SHIP AND CARGO ON CONTRACTS OF AFFREIGHTMENT

74. It is a fundamental principle that the ship is pledged to the cargo and the cargo to the ship for the fulfillment of the conditions of the contract of carriage.

This reciprocal right of procedure is one of the most ancient doctrines of the admiralty. Under it, the vessel has a lien upon the cargo for its freight money."

This lien or right of the vessel to hold the cargo for its freight money differs from the admiralty liens heretofore discussed in the fact that it is dependent upon actual or constructive possession. The vessel owner who delivers the cargo unconditionally into the possession of the consignee loses his right to hold the cargo itself for his freight.

But one of the principles of the law of freight is that freight is not due until the cargo is unloaded and the consignee has an opportunity to inspect the goods and ascer

3 HOSTETTER v. PARK, 137 U. S. 30, 11 Sup. Ct. 1, 34 L. Ed. 568; Prussia (D. C.) 100 Fed. 484.

4 Post, p. 171.

8 74. 5 Certain Logs of Mahogany, 2 Sumn. 589, Fed. Cas. No. 2,559; Seaboard (D. C.) 119 Fed. 375; Jebsen v. A Cargo of Hemp (D. C.) 228 Fed. 143.

• Pioneer Fuel Co. v. McBrier, 28 C. C. A. 466, 84 Fed. 495; Cargo of Fertilizer (D. C.) 88 Fed. 984; Appam (D. C.) 243 Fed. 230.

tain their condition. Hence the master of a vessel cannot demand his freight as a condition precedent to unloading; nor, on the other hand, can the consignee demand the goods as a condition precedent to paying the freight. The master, in other words, must discharge his goods, but not deliver them. If he and the consignee are dealing at arm's length, his proper procedure would be to discharge them in a pile by themselves, notifying the consignee that he does not give up his lien for freight; or, if necessary for their protection, discharge them into a warehouse, or into the hands of a third person. Then if the consignee, after a reasonable time allowed for inspection, does not pay the freight, the master can proceed in rem against the goods to enforce its payment.'

Conversely, the cargo has a right of procedure against the ship for any violation of the contract of affreightment. Transactions more thoroughly marine in nature than the relations of ship and cargo could hardly be imagined. Yet one result of the common-law warfare upon the admiralty. in England, and the contention that contracts made on land, no matter what their subject-matter, were without the admiralty, was that in England the admiralty courts lost jurisdiction over such controversies."

It was partially restored by Act 24 Vict. c. 10, § 6, but only to the extent of giving a power to arrest, not a lien, and giving that only against vessels no owner or part owner of which resided in England or Wales.10

7 BRITTAN v. BARNABY, 21 How. 527, 16 L. Ed. 177; BAGS OF LINSEED, 1 Black, 108, 17 L. Ed. 35; Nathaniel Hooper, Fed. Cas. No. 10,032; Cassius, 2 Story, 81, Fed. Cas. No. 564; Treasurer, 1 Spr. 473, Fed. Cas. No. 14,159.

8 Rebecca, 1 Ware, 187, Fed. Cas. No. 11,619; Bulkley v. Naumkeag Steam Cotton Co., 24 How. 386, 16 L. Ed. 599; Humarock (D. C.) 234 Fed. 716.

9 Cargo ex Argos, L. R. 5 P. C. 146-148.

10 Pieve Superiore, L. R. 5 P. C. 482; Scrutton on Charter Parties and Bills of Lading, 376-380, 406.

ENTIRETY OF AFFREIGHTMENT CONTRACT

75. The contract of affreightment is an entire contract, so that freight is not earned until the contract is com

pleted.

On this subject Mr. Justice Story says in the Nathaniel Hooper, above cited: "The general principle of the maritime law certainly is that the contract for the conveyance of merchandise on a voyage is in its nature an entire contract, and, unless it be completely performed by the delivery of the goods at the place of destination, no freight whatsoever is due; for a partial conveyance is not within the terms or the intent of the contract, and, unless it be completely performed by the delivery of the goods at the place of destination, no freight whatsoever is due, and the merchant may well say 'Non in hæc fœdera veni.'"

Under this principle, in case of a marine disaster, the master has the right to repair and complete the voyage, although this action on his part involves delay; or he may transship the goods into another vessel and so save the freight. If the delay or the condition of the goods is such as to render either of these expedients unprofitable, he may sell the goods at an intermediate port, and terminate the venture, but in the latter case he would not be entitled to his freight.11

But if the voyage is broken up before completion, though from a cause beyond his control, he loses his freight.12

§ 75. 11 Jordan v. Warren Ins. Co., Fed. Cas. No. 7,524; Hugg v. Augusta Ins. & Banking Co., 7 How. 595, 12 L. Ed. 834. If he carries part of the cargo contracted for, he can recover freight for the part so carried less damages for his failure to carry the rest. Edward Hines Lumber Co. v. Chamberlain, 118 Fed. 716, 55 C. C. A. 236.

12 Appam (D. C.) 243 Fed. 230. The voyage was not broken up when the crew left a ship under orders of a hostile submarine, with

APPORTIONMENT OF FREIGHT

76. Freight is payable pro rata at an intermediate port, if the voyage is broken up, only by the consent of the consignee, either actual, or implied from his voluntarily receiving his goods at such intermediate port.

This is not an exception to the general rule based upon the principle of entirety of contracts, that freight is only due when the voyage is completed. It is tantamount to saying that the parties, by mutual agreement, may rescind the contract at an intermediate port. Hence the acceptance of the goods at an intermediate port, not voluntarily, but in pursuance of a practical necessity on the part of the consignee to receive them, does not entitle the vessel to pro rata freight, and if the vessel incurs expenses before leaving the initial port at all, or "breaking ground,” as it is technically called, no pro rata freight could be equitably claimed.18

A provision requiring the shipper to prepay the freight on delivery of the goods to the carrier, and authorizing the carrier to retain it if prevented from proceeding by causes beyond his control (for instance, an embargo), will be enforced, though the vessel never broke ground.14

The delivery of the cargo on a wharf with notice to the

out the intent to abandon permanently; the ship having been subsequently brought into port. Bradley v. Newsum, 34 T. L. R. 613.

§ 76. 13 Sampayo v. Salter, 1 Mason, 43, Fed. Cas. No. 12,277; Tornado, 108 U. S. 342, 2 Sup. Ct. 746, 27 L. Ed. 747; Mitsui v. St. Paul Fire & Marine Ins. Co., 202 Fed. 26, 120 C. C. A. 280. As to the meaning of "breaking ground," see ante, p. 72, note 82.

14 Allanwilde Transport Corporation v. Vacuum 377, 39 Sup. Ct. 147, 63 L. Ed. 312, 3 A. L. R. 15; bers, 248 U. S. 387, 39 Sup. Ct. 149, 63 L. Ed. 392, 39 Sup. Ct. 150, 63 L. Ed. 321.

Oil Co., 248 U. S.

Gracie D. Cham

; Bris, 248 U. S.

consignee, or without notice, if that is the usage of the port, is a termination of the ship's liability as carrier.15

The vessel owner is entitled to his freight if the goods arrive in specie, though they have been so injured as to be practically valueless, provided the injury is not caused by such acts as would render the carrier liable.1 16

In a suit by the vessel owner for freight, the consignee may in the same suit plead in recoupment any damage done to the goods for which the carrier is liable.17

The receipt of the goods by the consignee is an implied promise on his part to pay the freight (though such implication may be rebutted), and he may be sued for it personally.18

SHIP AS COMMON CARRIER

77. A ship may or may not be a common carrier, according to the manner in which she is being used.

78. A general ship is a common carrier.

1.9

When is a ship a common carrier, and when not? The test is well laid down in the case of the Niagara, where the court says: "A common carrier is one who undertakes for hire to transport the goods of those who may choose to employ him from place to place. He is in general bound to take the goods of all who offer." Story thus defines a "common carrier": "To bring a person within the descrip

15 Constable v. National Steamship Co., 154 U. S. 51, 14 Sup. Ct. 1062, 38 L. Ed. 903.

16 Hugg v. Augusta Ins. & Banking Co., 7 How. 595, 12 L. Ed. 834; Seaman v. Adler (C. C.) 37 Fed. 268.

17 Snow v. Carruth, 1 Spr. 324, Fed. Cas. No. 13,144; Bearse v. Ropes, 1 Spr. 331, Fed. Cas. No. 1,192.

18 Trask v. Duvall, 4 Wash. C. C. 181, Fed. Cas. No. 14,144; Vane v. A. M. Wood & Co. (D. C.) 231 Fed. 353; Frontier S. S. Co. v. Central Coal Co., 234 Fed. 30, 148 C. C. A. 46.

§§ 77, 78. 19 21 How. 22, 16 L. Ed. 41. See, also, Jaminet v. American Storage & Moving Co., 109 Mo. App. 257, 84 S. W. 128.