a separate charge for crossing a bridge. In the case of Southern Pacific Company v. Patterson,1 the railroad company had conveyed its right of way across a river to an independent bridge company, which exacted a toll of fifty cents for crossing the river. This was held to be an illegal exaction. The court seems to have thought that no separate charge could properly be made, and this, it is submitted, is the correct view. In the actual case the decision was that, whether or not a separate charge could be made, it could not at any rate exceed the maximum mileage rate imposed by law upon railroad companies. Topic D. The Shipment the Unit §1263. Maritime freight. Freight is a single thing, and cannot be broken up into two or more separate claims. The carrier may be entitled to it, or he may not yet have entitled himself to it; but he is entitled to the whole or nothing. It becomes important, therefore, to examine more closely into the nature of freight, and determine just when the right to it accrues. In the maritime law, the freight is a separate maritime interest, distinct from vessel and cargo, and like them dependent upon the safety of the voyage. It comes into being as an existent interest as soon as the voyage begins, that is, at the moment when the vessel "breaks ground;" but it is not earned until the voyage is completed, and it is for that reason at risk until it is earned. It may be insured, libelled, or transferred as a separate interest. Wherever there is an agreement, on the one side to carry and on the other to pay freight, it is a necessarily implied term of the contract that the carrier shall be allowed to 17 Tex. Civ. App. 451, 27 S. W. 194 (1894). 'Curling v. Long, 1 Bos. & P. (Eng.) 634 (1797). See also Burgess v. Gun, 3 Har. & J. (Md.) 225 (1811); Bailey v. Damon, 3 Gray (Mass.), 92 (1854). fulfil the contract on his side and thus earn the freight; and if the shipper takes away his goods before the voyage begins, and thus prevents the carrier from earning freight, the carrier is entitled to compensation. Under such circumstances the orthodox cases give the carrier his entire freight, but this is not followed in several jurisdictions.1 § 1264. Right to freight on land. 2 Freight due for land carriage under the common law, though it derives its name from maritime freight, is of a different nature. There is no separate distinct interest, apart from the chose in action which the carrier has to recover his charges. It is, therefore, not quite literally accurate to speak of freight coming into being, under the common law, at the particular moment when the carriage begins. Freight which is due because of an express agreement or because of the provisions of the common law is not earned until delivery, by the carrier, as will be seen; but on the other hand the carrier obtains by the agreement or by the law a right to earn it by completing the carriage just as soon as delivery is made to him. After possession is given to the carrier, the owner cannot repossess himself of the goods without becoming liable to make payment. But there is a difference as to the amount due the carrier before the journey has begun and that due after the carrier has actually begun to carry. In the former case damages alone would be due. But in the latter case the carrier is entitled to the whole amount 1 Cases which lay down a right to the entire amount of freight are: Tindall v. Taylor, 4 E. & B. (Eng.) 219 (1854); Bartlett v. Carnley, 6 Duer (N. Y.), 194 (1856); Van Buskirk v. Purinton, 2 Hall (N. Y.), 561 (1829); Collman v. Collins, 2 Hall (N. Y.), 569 (1829). On the other hand, the follow ing cases point out the possibility of reducing the amount of damages: Burgess v. Gun, 3 Har. & J. (Md.) 225 (1811); Bailey v. Damon, 3 Gray (Mass.), 92 (1854); Clemson v. Davidson, 5 Binn. (Pa.) 392 (1813). 2 Shipton v. Thornton, 9 A. & E. (Eng.) 314 (1838), semble. of freight. The owner who takes his goods before they have arrived at their destination, but after they have been put in transit, must pay the full amount of the freight. Full performance of the carriage is a condition precedent to liability; and by taking his goods during the journey the owner has waived further performance of the condition and must therefore fully perform on his side.1 since §1265. Effect of carriage over a portion of the journey. Where the carriage is interrupted when partly completed, there is no delivery at the destination, the freight is not due; and since freight is an entirety there is nothing which can properly be recovered, in the absence of a new agreement. In the case of Luke v. Lyde,2 to be sure, Lord Mansfield attempted to establish the doctrine that compensation proportioned to the distance the goods were carried, that is, freight pro rata itineris, might be recovered where the carrier was not at fault; but the attempt failed, and it is well settled that where the carriage is not completed, even though the carrier is not in fault and the owner receives a benefit, freight pro rata itineris cannot be recovered. If, however, the owner voluntarily receives the goods short of destination by mutual consent of himself and the carrier, there is a novation, one term of which is the implied agreement to pay reasonable compensation, which is freight pro rata itineris. Where the goods are offered for delivery by the carrier, but by the law of that place no delivery can be made, the carrier's obligation is 'Violett v. Stettinius, 5 Cr. C. C. (D. C.) 559 (1839); Braithwaite v. Power, 1 N. Dak. 455, 48 N. W. 354 (1891). 22 Burr. 882 (1759). 'Hunter v. Prinsep, 10 East (Eng.), 378 (1808); Vlierboom v. Chapman, 13 M. & W. (Eng.) 230 (1844); Caze v. Baltimore Ins. Co., 7 Cr. (U.S.) 358, 3 L. ed. 370 (1813); 4 The Propeller Mohawk, 8 Wall. (U. S.) 153, 19 L. ed. 406 (1869); The Teutonia, L. R. 3 Adm. 394 (1871). 1 fulfilled and he is entitled to freight. So where at the port of destination a vessel was not allowed to land part of her cargo, consisting of petroleum, but other goods were landed, it was held that freight was earned on the petroleum.2 § 1266. No freight without delivery. 3 As the whole freight is an indivisible unit, it is obvious that without some new arrangement between the parties the carrier will not be entitled to any freight whatever for goods not delivered at the destination. No matter how little the carrier may lack of making the required delivery, only an absolute fulfilment of his obligation can entitle him to any freight whatever. To quote from one case: "The consignor is not bound to pay until the transportation is completed in accordance with the contract, but he may prevent the master's earning his freight. If he takes possession of the goods short of their destination, when the master, not in default, is willing and able to complete the transportation, he must pay full freight. He has prevented or waived the performance of the condition precedent. The law, therefore, regards it as performed." § 1267. Effect of partial delivery. Where delivery is made of part of the goods only, it is sometimes possible to divide the shipment into separate units, and recover freight for as many such units as are delivered. This often happens where a large quantity of 1 Cargo ex "Argos," L. R. 5 P. C. 134 (1873); Morgan v. Insurance Co., 4 Dallas (U. S.), 455, 1 L. ed. 907 (Pa., 1806). 2 Cargo ex "Argos," supra. 3 Brittan v. Barnaby, 21 How. (U. S.) 527, 16 L. ed. 177 (1858); McCullough v. Hellweg, 66 Md. 269 (1886); Lane v. Penniman, 4 Mass. 91 (1808); Harris v. Rand, 4 N. H. 259, 17 Am. Dec. 421 (1827); Western Transportation Co. V. Hoyt, 69 N. Y. 230, 25 Am. Rep. 175, B. & W. 287 (1877); Braithwaite v. Power, 1 No. Dak. 445, 48 N. W. 354 (1891). • Braithwaite v. Power, supra. similar things are shipped, or commodities are shipped in bulk, and a portion is lost. Thus where a cargo of fruit was shipped and part of it decayed, freight was recoverthat portion of the cargo which was delivered in able on specie. 1 carrier In fact, it may in such a case be the duty of the to permit the consignee to treat the shipment as an aggregate of units. For instance, when such a cargo was being unloaded upon the wharf for delivery, and only part of it could be unloaded in a day, it was held that the Consignee had a right to take that portion of the cargo so unloaded upon paying freight pro rata.2 § 1268. Freight indivisible as a rule. 3 Where goods are shipped in a single shipment the freight cannot be broken up, and a pro rata amount charged for a part delivered. Thus the carrier, offering part, cannot libel it for freight, and where part has been delivered, and the carrier fails to deliver the remainder, he is entitled to no freight. Thus: "unless freight is wholly earned by a strict performance of the voyage, no freight is due or recoverable. The contract of the carrier is indivisible, and he can recover for no portion of the voyage that has been made, until the whole is finished and the goods have reached their destination." & 1269. Entire freight when goods arrive damaged. If the goods arrive in specie, but have been damaged without fault of the carrier, entire freight is due. If, however, the goods do not arrive in specie, though through 1 The Brig Collenberg, 1 Black (U. S.) 170, 17 L. ed. 89 (1859). 2 Brittan v. Barnaby, 21 How. (U. S.) 527, 16 L. ed. 177 (1858). In re Vitrified Pipes, 14 Blatch. 274, Fed. Cas. 10,536 (1877), reversing 5 Ben. 402, Fed. Cas. 14,280 (1871). Western Transportation Co. v. Hoyt, 69 N. Y. 230, 25 Am. Rep. 175, B. & W. 287 (1877). 1 5 Lawrence V. Denbreens, Black. (U. S.) 170, 17 L. ed. 89 (1862); The Cuba, 3 Ware, 260, Fed. Cas. 3,458 (1860); Seaman v. Adler, 37 Fed. 268 (1889). |