and delivered on freight being paid, it was held that the delivery of a complete cargo was not a condition precedent, the freighter having his remedy in damages for any short delivery (ƒ). Nor could the consignee of goods under a bill of lading deduct from the freight payable in respect of the goods delivered the value of articles which, although mentioned in the bill of lading, have by mistake never been shipped (g). Where freight was to be paid upon the right and true delivery of the cargo agreeably to bills of lading, it was held to be payable upon proof of the entire number of casks mentioned having been delivered, although it appeared that the contents had been damaged by the negligence of the master and crew; the party injured having in such a case his counter-remedy by action for the negligence (h).

But although the principle of these decisions remains unaffected, the provisions of the Judicature Act, 1873 (i), which entitle a defendant to set up a counter-claim by way of answer to an action, altogether alters their practical effect, because to an action for freight the defendant may now, subject to the provisions of the Rules of the Supreme Court, Ord. XIX., rule 3, set up in answer to the claim for freight, a counter-claim for damage to the cargo.

respect of

No claim can be set up by the purchaser of a cargo against Claims by the seller in respect of short delivery, if it appears from the terms purchaser in of the contract between them, that it was intended that the pur- short delivery. chaser should take the chance of the quantity turning out more

or less (j).

Where a cargo of wheat, to be shipped, had been sold, and the contract note mentioned certain quantities as the maximum and minimum to be shipped, it was held that the purchaser was entitled to refuse to accept the shipping documents, or to pay for the cargo, as the bill of lading and shipping documents

Ex. 822. In an action for freight due upon a charter-party, a plea, alleging that, by the fault of the master and crew, and their negligent and unskilful navigation of the vessel, the cargo was damaged, so that upon its arrival it was of less value than the freight, and that the charterer thereupon abandoned the cargo to the shipowner, was held bad. Dakin v. Oxley, 15 C. B., N. S. 646. The foreign authorities are fully discussed in the judgment of this case. See also The Norway, Br. & L. 377.

(f) Ritchie v. Atkinson, 10 East, 295; and see Christie v. Row, 1 Taunt. 300; Gibson v. Sturge, 10 Ex. 622; and see the judgment in White v. Beeton, 7 H. & N. 42. There is no case in which the delivery of less than a complete cargo has not been held to be apportionable.

(g) Meyer v. Dresser, 16 C. B., N. S. 646; 33 L. J., C. P. 289.

(h) Davidson v. Gwynne, 12 East, 381.

(i) Sect. 24, sub-s. 3.

(J) Covas v. Bingham, 2 E. & B. 836.

AMOUNT AND
CALCULATION
OF FREIGHT.

represented the cargo to consist of a greater quantity than the maximum fixed. It was also held that the purchaser was not bound to pay for the cargo, or to accept shipping documents which represented it to be within the prescribed limits, if in fact it exceeded them (j).

The terms of the charter or bill of lading under which a cargo is shipped are usually sufficiently specific to make the amount of freight payable a mere matter of calculation (k). Questions, however, may arise as to the time and manner of measurement of the cargo according to which freight is to be paid, and which are of practical importance where a cargo increases or decreases in weight during the voyage. The rule to be followed in these cases was much discussed in a case where a cargo of corn shipped at Odessa became heated and damaged during the voyage whereby its bulk increased. It was held that freight was payable only on the quantity shipped, and not on its measurement at the port of discharge (1). To obviate this doubt, bills of lading sometimes provide that freight shall be payable on "nett weight delivered" (m); but where it is intended to make the freight payable on the quantity of cargo delivered apt words must be used. In a case where the charter-party stipulated that the ship should load a cargo of cotton and proceed with it to Liverpool, and deliver the same on being paid freight at the rate of 758. per ton delivered, it was held that freight was payable on the quantity shipped, and that the word delivered was only inserted to show that any goods not delivered were not to be paid for (n). It is common in grain charter-parties to

(j) Tamraco v. Lucas, 1 E. & E. 581 -592. See also Tamvaco v. Lucas, 1 B. & S. 185, where a question arose on a similar contract as to the sufficiency of a policy of insurance, tendered as one of the shipping documents.

(k) If there be no proof to the contrary the quantity named in the bill of lading will be taken to be that upon which freight must be paid. Tully v. Terry, L. R., 8 C. P. 679. It is not uncommon to reserve to the charterer the option of shipping any of several classes of goods, and to stipulate that a named rate of freight shall be paid if a particular class of goods is shipped, or that if other goods are shipped freight shall be paid in proportion according to the London Baltic

printed rates or other printed rates. As to the effect of such a stipulation see The Southampton Steam Colliery Company v. Clarke, L. R., 4 Ex. 73, 6 Ex. 57. The holder of a bill of lading comprising the whole cargo is commonly entitled to deduct address commission from the freight. Norway, Br. & L. 404. As to custom respecting discount see Falkner v. Earle, 32 L. J., Q. B. 124. As to the liability of the indorsee of a bill of lading to pay primage see Caughey v. Gordon, 3 C. P. D. 419.

The

(1) Gibson v. Sturge, 10 Ex. 622, where see the foreign authorities cited. (m) Coulthurst v. Sweet, L. R., 1 C. P. 649.

(n) Buckle v. Knoop, L. R., 2 Ex.

insert special clauses which confer upon the master, in the event of the cargo being delivered in a damaged or heated condition, to demand freight upon the invoice quantity as per bill of lading, or half freight, upon the damaged or heated portion (0). Where there has been a transhipment, questions of some dif- In case of ficulty have arisen as to the rate of freight which is recoverable. transhipment. Where goods were shipped in a general ship under a bill of lading, in which the freighter was named as the consignee, and the completion of the voyage was prevented by damage done to the ship by tempest, but the goods were forwarded by the master to their destination by another ship, under a bill of lading making another person consignee, it was held, that the freighter was liable, on the receipt of the goods, for the whole freight originally contracted for, although they were carried by the second conveyance at a less freight (p).

The chief remaining incidents which belong directly to the subject of freight are its recovery, and the shipowner's lien in respect of it.

FREIGHT.

Under the first of these heads we shall consider the parties RECOVERY OF liable to pay freight under the usual contracts, and the ordinary remedies for its recovery.

In order to render a person liable to pay freight, there must be an express or implied contract for its payment between him and the shipowner (9).

This proposition appears to be self-evident, but it is necessary to state it, because difficulties have arisen in many

125, 333. See the same case as to evidence of custom in such a case, and see supra, p. 294. In Spaight v. Farnworth, 5 Q. B. D. 115, a cargo of deals and battens was shipped under a charter-party by which freight was to be paid on the "intake measure of quantity delivered." The various pieces were measured by the shipper at the port of shipment. A number of the pieces were lost during the voyage, their dimensions were unknown, but they were of average size with the rest of the cargo. It was held that the freight was payable on the intake measurement, and that the amount of

freight was to be ascertained by
making in respect of the last pieces a
proportionate reduction from the sum
total of the measurement of the cargo.
(0) See Tully v. Terry, L. R., 8 C. P.

679.

(p) Shipton v. Thornton, 9 A. & E. 316.

(7) See the judgment of Grose, J., in Ward v. Felton, 1 East, 513, and Smidt v. Tiden, L. R., 9 Q. B. 446. As to evidence of an implied contract on the part of the vendor of goods to pay for the goods "freight" at a rate exceeding the freight mentioned in the bill of lading, see Swan v. Barker, 5 Ex. D. 130.

General rules as to party liable.

Receipt of goods under a

as affecting liability to pay freight.

cases from its being overlooked. There is no rule of law that in this or that case a liability arises to pay freight, it is always a question of fact to be decided upon the particular circumstances of each case. Several contracts may exist simultaneously binding different parties to pay the same freight; for instance, the shipper may be liable on his express contract by charter-party, or on the implied one arising from the shipment, and the indorsee of the bill of lading, or the consignee, receiving the goods under the bill of lading, may, at the same time, be liable on an implied contract arising from such receipt. In these cases there is no transfer of liability. It seems, indeed, to have been at one time supposed that the contract was ambulatory, and that when the goods were delivered the shipper ceased to be liable because his liability was transferred to the party taking the goods, but it is now established that the shipper continues liable on his original contract, and that the person receiving the goods may be liable also, upon a new contract, the consideration for which is the delivery of the goods to him (→).

As a general rule, the indorsee of a bill of lading is bound by bill of lading, its terms upon receiving the cargo under it. Thus, where by the bills of lading the goods were to be delivered to certain persons or their assigns, "he or they paying freight for the same," it was held, that the demanding and receiving of these goods from the master by a purchaser and assignee of the bill of lading was evidence of a new contract by him to pay the freight, as the

(r) See Christy v. Row, 1 Taunt. 300; Shepard v. De Bernales, 13 East, 565; Sanders v. Vanzeller, 4 Q. B. 288; Kemp v. Clark, 12 Q. B. 647. The fact that a cargo is received under a bill of lading, although not necessarily raising a contract in law, is evidence from which a jury may infer a contract to pay freight in consideration of the captain giving up his lien on the goods, per Parke, B., in Young v. Moeller, 5 E. & B. 760. In Drew v. Bird, M. & M. 156, it was ruled at Nisi Prius, that where there is no charterparty the shipper is not liable to pay freight if the bills of lading state that it is to be paid by the consignee or assigns; but this case is not law. See per Parke, B., in Sanders v. Vanzeller, ubi supra. The 18 & 19 Vict. c. 111, s. 2, which places consignees named in bills of lading, and indorsees to whom

the property in the goods has passed by the consignment or indorsement, in the same position as if the contract contained in the bill of lading had been made with themselves, expressly enacts that nothing in the act contained shall prejudice or affect any right to claim freight against the original shipper or owner, or any liability of the consignees or indorsees in consequence of their being such, or of their receipt of the goods, by reason or in consequence of the consignment or indorsement. But this does not mean that an indorsee of a bill of lading who has not received the goods and who has incurred no liability to pay freight save by virtue of the statute, remains liable after he has indorsed away the bill of lading, and parted with all his interest in the goods. See Smurthwaite v. Wilkins, 11 Č. B., N. S. 342, supra, p. 346.

ultimate appointee of the shippers for the purpose of delivery (s). So, where goods were shipped in a chartered vessel under bills of lading, which made them deliverable to the shipper's order, or his assigns, "he or they paying freight according to the terms of the charter-party," and the goods were landed at the West India Dock, and the bills of lading were afterwards indorsed by the then holder to the defendants, as his brokers, who received the goods under them, and sold them, accounting to their principal for the proceeds, it was held that they were liable for the freight, although they had paid over the proceeds before it was demanded of them (t). But where the goods were not consigned to the defendant, although it had been intended at one time that this should be done, but to a third person, to whose order the bills of lading were made, and one of these bills, not however indorsed to the defendant, was sent to him in a letter, advising him of the consignment, and requesting him, in case the consignee should not have arrived at the port of discharge, to do the best that he could for the shippers, upon which the defendant, (acting as agent for the consignee in his absence,) caused the goods which were damaged to be landed at the King's warehouse, in compliance with the requisitions of an act of Parliament, and entered them at the Custom House in his own name to prevent their seizure, it was held that this was not an acceptance from which a contract to pay the freight could be implied (u). So, where the bills of lading made the cargo deliverable to the consignees or their assigns, "he or they paying freight for the same," and they indorsed them to the defendants, their brokers, who were largely in advance to them, and the defendants entered the goods at the Custom House in their own names, but landed them at the docks in the names of the consignees, and afterwards obtained possession of the goods, not under the bills, but under a delivery order from

(s) Cock v. Taylor, 13 East, 399; see also Roberts v. Holt, 2 Show, 443; Stindt v. Roberts, 5 D. & L. 460; S. C., 17 L. J., Q. B. 166, and the observations on this case by Parke, B., in Young v. Moeller, 5 E. & B. 760; Artaza v. Smallpiece, 1 Esp. 23, is apparently not law. Where the language of the bill of lading was 66 'freight for the said goods 47. 5s. per ton net delivered, with primage and average accustomed, it was held that its effect was the same as "he or they paying freight

for the same."
R., 6 H. L. 286.

Weguelin v. Cellier, L.

(t) Bell v. Kymer, 5 Taunt. 477; and see Pindar v. Wilks, ib. 612, and Dougal v. Kemble, 3 Bing. 383. Where the facts are sufficient to raise an implied promise to pay freight on receipt of the goods, it appears to be immaterial that the bill of lading is for delivery to the consignees, omitting the words "or their assigns." See Renteria v. Ruding, M. & M. 511.

(u) Ward v. Felton, 1 East, 506.