cargo was accepted by the owners; and this has been generally approved by the courts of this country as the more correct and equitable rule.19 Sec. 821. (§ 462.) Same subject-The application of the rule. The rule thus adopted forbids all investigation into the questions of benefit received by the shipper from the partial transportation, and of the expense of reshipment from the port of acceptance to destination, and divides the amount due. by the terms of the original contract of shipment, in the proportion of the distance performed to the whole distance of the voyage as originally contemplated. It is admitted that its strict application to many cases would occasion injustice to the shipper, as where the ship has been obliged by stress of weather to depart from the direct course of the voyage, and being wrecked, the expense of sending the goods to their destination from the place of acceptance is much greater in proportion to the distance than that agreed upon for the entire voyage. This was the case of Coffin v. Storer,20 in which it was said by Parsons, C. J., that "the rule adopted in Luke v. Lyde is manifestly unjust, for it is in that case admitted that the expense of freight to the destined port from the port where the freighter received the goods was as great as from the shipping port, so that he received no benefit from the proportion of the transportation for which payment was demanded of him." But while these objections to the general rule are admitted to be sometimes well taken, it is said to commend itself on account of its certainty and simplicity of application, and will be followed, except perhaps in cases in which it would cause palpable and serious injustice. Sec. 822. (§ 463.) Transshipment of goods when vessel delayed. As has been seen, when the prosecution of the voyage has become impossible in the vessel with which it was begun, or the delay occasioned by the disaster or obstruction is 19. 3 Kent's Com. 230; The Propeller Mohawk, 8 Wall. 153; Smyth v. Wright, 15 Barb. 51; Robinson v. Ins. Co., 2 Johns. 323. 20. 5 Mass. 252. likely to prove disastrous to the goods, it is the duty of the carrier to forward them by some other means of conveyance, when it can be procured. In such a case of necessity, it is evident that the authority of the carrier is not limited to that which appertains to his rights strictly as carrier, but grows out of the agency which the law, from the necessity of the case, imposes upon him; and, having invested him with such authority, the law allows the employment of any reasonable means which may be necessary to save the goods and, at the same time, forward them to their destination. He may, therefore, in such an emergency, hire another carrier to convey them to their destination, at any price which it may be necessary to pay, and which, considering the nature of the goods and other circumstances, he may consider proper, whether such price exceed or fall short of the amount of freight due under the original contract between the parties, and the freight for the carriage of the goods upon such renewed voyage becomes a charge upon them. The law is thus stated by Chancellor Kent in Searle v. Scovell,21 upon the authority of both text-writers and cases which are there cited by him. Sec. 823. (§ 464.) Same subject-Payment of freight in such cases. The shipper, in the event the freight from the port of necessity shall exceed that which would have been due under the original contract, will be bound for such excess to the carrier who completes the transportation, upon the ground that the contract to pay it was made on his behalf; and such carrier will have a lien upon the goods to secure its payment. But neither the shipper nor the goods will be bound both for the freight agreed to be paid to the original carrier, and for that to which the substituted carrier has become entitled.22 21. 4 Johns. Ch. R. 218. Without deciding that there is an obligation to transship, the Supreme Court of Canada in Owen v. Outerbridge, 26 S. C. R. 272, decided that the option to transship is to be exercised, if exercised at all, within a reasonable time. 22. In Matthews v. Gibbs, 3 El. & El. 282, it is held that the master can only transfer the lien which his own vessel has upon the goods; and that if the shipper has already paid to the first carrier any part of the freight, the lien of the substituted carrier is The freight due to the substituted vessel, if less than that which the shipper has agreed to pay for the entire transportation, must be deducted from it, and the balance is what he will owe the carrier who undertook but only partially performed it. If it be more, the latter will have no claim to freight, and the shipper must bear the loss of the excess.23 Sec. 824. ($465.) Same subject-Difference in rates, how adjusted. The leading English case upon this case is that of Shipton v. Thornton,2+ in which the facts were that a transshipment from necessity had been made of the goods, for an amount of freight less than that stipulated for by the terms of the original contract. The shippers contended that they were liable to the carrier who had first undertaken the carriage, and had been compelled to complete it with a substituted vessel, only for the freight to the port of transshipment, they having already paid to the substituted carrier his own freight. But it was held to have been the right of the master to tranship the goods, and that, as he had fulfilled his undertaking to carry the goods to destination, he had earned his full freight according to the contract of shipment, it being a matter of indifference to the owner of the goods whether they had arrived by one vessel or another. "One question, however, has been asked," continued Lord Denman, who delivered the judgment of the court, "which it will not be right to pass over. What, it has been said, if the transshipment can only be effected at a higher than the original rate of freight? . . . No case of the sort, that we are aware of, has occurred in this country; nor is it necessary for us to express any opinion further than as it bears on the present question. It may well be that the master's right to transship may be limited to those cases in which the voyage may be completed on its original terms as to only co-extensive with what remains unpaid. 23. Hugg v. The Mining, etc. Co., 35 Md. 441; Hugg v. The Augusta Ins. Co., 7 How. 595; Searle v. Scovell, supra; Griswold v. The Ins. Co., 3 Johns. 321; Clark v. The Ins. Co., 2 Pick. 104; Crawford v. Williams, 1 Sneed, 205. 24. 9 A. & E. 314. freight, so as to occasion no further charge to the freighter; and that where the freight cannot be procured at that rate, another but familiar principle will be introduced, that of agency for the merchant. For it must never be forgotten that the master acts in a double capacity; as agent of the owner as to the ship and freight, and agent of the merchant as to the goods. These interests may sometimes conflict with each other; and from that circumstance may have arisen the difficulty of defining the master's duty under all circumstances, in any but very general terms. The case now put supposes an inability to complete the contract on its original terms in another bottom, and, therefore, the owner's right to transship will be at an end; but still, all circumstances considered, it may be greatly for the benefit of the freighter that the goods should be forwarded to their destination, even at an increased rate of freight; and if so, it will be the duty of the master as his agent to do so. In such a case, the freighter will be bound by the act of his agent, and, of course, be liable for the increased freight. The rule will be the same whether the transshipment be made by the ship-owner or the master; and in applying it circumstances make it necessary, on the one hand, to repose a large discretion in the master or owner, while the same circumstances require that the exercise of that large discretion should be very narrowly watched."25 Sec. 825. (§ 466.) Same subject-Power of master as agent. The master may, however, act as the agent of the owners of his own ship in making the transshipment; and when he 25. The law upon this subject is thus summed up by Dr. Lushington, in his judgment in the case of The Soblomsten (L. R. 1 Adm. 293): is payable if, by the default of the owner of the cargo, the master is prevented from forwarding the cargo from the intermediate port to its destination. "Third, that no freight is payable, if the owner of the cargo, against his will, is compelled to take the cargo at an intermediate port. "First, that upon the vessel becoming disabled at an intermediate port, the master is allowed a reasonable time within which to reship or transship so as to earn his freight. "Fourth, that to justify a claim "Second, that the whole freight for pro rata freight, there must be has employed another vessel at a less rate than that which the shipper has agreed to pay, so that a profit will be made by the transshipment, it will be presumed that he has made the contract in the interest and as the agent of the owners of his ship, and not as the agent of the owners of the cargo, and any saving which may be thus made will inure to the benefit of the former.26 But the master cannot, as the agent of the owners of his vessel, bind them by his contract with the substituted carrier to pay more freight than was agreed upon in the original contract of shipment.27 Thus the carrier may make a profit by a transshipment, while the shipper, being bound to pay at least the amount fixed by the original contract upon the arrival of his goods, and more in case the transshipment is made at a higher rate, can never be the gainer and may be a loser. This power of the master is therefore liable to great abuse; but, as said in Searle v. Scovell,28 "the opportunity of abuse exists equally in cases of acknowledged power, and cannot impeach the soundness or utility of the general principle." The power to bind the owner of the goods to an increased freight should, therefore, be admitted only in a case of clear necessity; and if it appear that the master of the vessel could by the expenditure of a small sum for repairs have brought the goods safely to their destination, he and the owners of his ship will be held liable to the shipper for not having done so, when the latter has been compelled to pay for the renewed voyage in excess of his contract.29 Sec. 826. (467.) No freight recoverable when ship captured by the public enemy.-If the vessel be captured by the public enemy no freight will be recoverable by the carrier; the rule being in such cases that the carrier loses his ship and freight, and the shipper his goods.30 But if the ship be re a voluntary acceptance of the goods by their owner at an intermediate port in such a mode as to raise a fair inference that the further carriage of the goods was intentionally dispensed with." 26. Hugg v. The Mining, etc.. Co., 35 Md. 414; Matthews v. 27. Lemont v. Lord, 52 Me. 365. 29. Wilson v. The Bank of Victeria, L. R. 2 Q. B. 203. 30. Tirrell v. Gage, 4 Allen, 245; |