Mar. law, contracts. The sum agreed on for the hire of a ship, entirely or in part, for the carriage of goods from one port to another; l3 East, 300, note; but in, its more extensive sense it is applied to all rewards or compensation paid for the use of ships. 1 Pet. Adm. R. 206; 2 Boulay-Paty, t. 8, s. 1; 2 B. & P. 321; 4 Dall. R. 459; 3 Johns. R. 335; 2 Johns. R. 346; 3 Pardess, n. 705.
2. It will be proper to consider 1. How the amount of freight is to be fixed. 2. What acts must be done in order to be entitled to freight. 3. Of the lien of the master or owner.
3. - l. The amount of freight is usually fixed by the agreement of the parties, and if there be no agreement, the amount is to be ascertained by the usage of the trade, and the circumstances and reason of the case. 3. Kent, Com. 173. Pothier is of opinion that when the parties agree as to the conveyance of the goods, without fixing a price, the master is entitled to freight at the price usually paid for merchandise of a like quality at the time and place of shipment, and if the prices vary he is to pay the mean price. Charte-part, n. 8. But there is a case which authorizes the master to require the highest price, namelly, when goods are put on board
without his knowledge. Id. n. 9. When the merchant hires the whole ship for the entire voyage, he must pay the freight though he does not fully lade
the ship; he is of course
only bound to pay in proportion to the goods he puts on board, when he does not agree to provide a full cargo. If the merchant agrees to furnish
a return cargo, and he furnishes none, and lets the ship return in ballast
, he must make compensation to the amount of the freight; this is called dead freight, (q. v.) in contradistinction to freight due for the actual carriage of goods. Roccus, note 72-75; 1 Pet. Adm. R. 207; 10 East, 530; 2 Vern. R. 210.
4. - 2. The general rule is, that the delivery of the goods at the place of destination, in fulfilment of the agreement of the charter party, is required, to entitle the master or owner of the vessel to freight. But to this rule there are several exceptions .
5.- 1. When a cargo consists of live stock, and some of the animals die in the course of the voyage
, without any fault
or negligence of the master or crew, and there is no express agreement respecting the payment of freight, it is in general to be paid for all that were put on board; but when the contract is to pay for the, transportation of them, then no freight is due for those which die on the voyage. Molloy, b. 2, c. 4, s. 8 Dig. 14, 2, 10; Abb. Ship. 272.
6.-2. An interruption of the regular course of the voyage, happening without the fault of the owner, does not deprive him of his freight if the ship afterwards proceed with the cargo to the place of destination, as in the case of capture and recapture. 3 Rob. Adm. R. 101.
7. - 3. When the ship is foreed into a port short of her destination, and cannot finish
the voyage, if the owner of the goods will not allow the master a reasonable time
to repair, or to proceed in another ship, the master will be entitled to the whole freight; and, if after giving his consent the master refuse
to go on, he is not entitled to freight.
8. - 4. When the merchant accepts of the goods at an intermediate
port, it is the general rule of marine law, that freight is to be paid according to the proportion of the voyage performed, and the law will imply such contract. The acceptance
must be voluntary, and not, one forced upon the owner by any illegal or violent
proceedings, as, from it, the law implies a contract that freight pro rata
parte itineris shall be accepted and paid. 2 Burr. 883; 7 T. R. 381; Abb. Shipp. part 3, c. 7, s. 13; 3 Binn. 445; 5 Binn. 525; 2 Serg. & Rawle, 229; 1 W. C. C. R. 530; 2 Johns. R. 323; 7 Cranch, R. 358; 6 Cowen, R. 504; Marsh. Ins. 281, 691; 3 Kent, Com. 182; Com. Dig. Merchant, E 3 a note, pl. 43, and the cases there cited.
9. - 5. When the ship has performed the whole voyage, and has brought only a part-of her cargo to the place of destination; in this case there is a difference between a general ship
, and a ship chartered for a specific sum for the whole voyage. In the former case, the freight is to be paid for the goods which may be, delivered at their place of destination; in the latter it has been questioned whether the freight could be apportioned, and it seems, that in such case a partial performance
is not sufficient, and that a special payment cannot be claimed except in special cases
. 1 Johns. R. 24; 1 Bulstr. 167; 7 T. R. 381; 2 Campb. N. P. R. 466. These are some of the excep tions to the general rule, called for by principles of equity, that a partial performance is not sufficient, and that a partial payment
or rateable freight cannot be claimed.
10. - 6. In general, the master has a lien on the goods, and need not part with them until the freight is paid; and when the regulations of the revenue require them to be landed
in a public warehouse
, the master may enter them in his own name and preserve the lien. His right to retain
the goods may, however, be waived either by an express agreement at the time of making the original contract, or by his subsequent agreement or consent. Vide 18 Johns. R. 157; 4 Cowen, R. 470; 1 Paine's R. 358; 5 Binn. R. 392. Vide, generally, 13 Vin. Ab. 501 Com. Dig. Merchant, E 3, a; Bac. Ab. Merchant, D; Marsh. Ins. 91; 10 East, 394 13 East, 300, n.; 3 Kent, Com. 173; 2 Bro. Civ. & Adm. L. 190; Merl. Rep. h. t. Poth. Charte-Partie, h. t.; Boulay-Paty, h. t.; Pardess. Index, Affretement.