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Other justifiable causes of deviation are to repair the ship from the effects of accident or tempest, to avoid enemies or pirates, and to procure supplies of provisions or water at places usually resorted to in long voyages for that purpose. But if the master deviates unnecessarily from the voyage, and the cargo is injured by tempests during the deviation, the deviation is a sufficiently proximate cause of the loss to entitle the freighter to recover.2

11. Duty in case of capture. The master's duty towards the cargo, in case of capture by a belligerent, is the same as that towards the vessel. He should remain and await the result of the prize proceedings, and exhibit the papers and documents with which he has been furnished for the protection of the cargo: and generally, he is to represent and act for the owners of the cargo, as well as the ship, until their wishes are made known.1 His duties do not entirely cease even with condemnation : he is to act for the benefit of all concerned, and if he should deem an appeal expedient, he is bound to enter it, and may, in his discretion, remain until the means of rendering the appeal effectual are concluded. In such case, he is entitled to compensation for his services in effecting the appeal and procuring the necessary papers, which

ciples are applicable to cases of affreightment as to policies of insurance. See Abbot on Shipping, Notes by Story, p. 239, n. 1. Phillips on Insurance, ch. 12, passim.

1 Abbot on Shipping, part 3, ch. 3, sec. 7. Jacobsen's Sea Laws, by Frick, book 2, ch. 1, p. 103.

2 Davis v. Garrett, 6 Bing. R. 716.

3 Ante, Part III, ch. 1.

Willard v. Dorr, 3 Mason's R. 161. The Saratoga, 2 Gallison's R. 178. Brown v. Lull, 2 Sumner's R. 443. Francis v. Ocean Ins. Co., 6 Cowen's R. Sims v. Sundry Mariners, 2 Peters's Adm. R. Cheviot v. Brooks, 1 Johns. R. 364.

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should be contributed to by the owner of the cargo.1 If by any negligence in the performance of this duty, the proprietor of the goods sustain damages, the master is responsible to the extent of such damage. But where the owners of the goods had neglected to furnish the master with the proper and customary documents to show their neutral character, and he had to depend on the accuracy of his memory to support the claim which he had interposed in the Admiralty Court of the captors, and answered the interrogatories in good faith and to the best of his recollection, it was held that no negligence could be imputed to him, even if it appeared that the prize court condemned the property on the disclosures made in his answer.3 What is required of the master, then, is that he should use due diligence, by all the fair means within his reach, to substantiate the neutral character of the property. But he is not bound to violate good faith, even in respect to an enemy, to protect the property from condemnation, or to employ fraud in order to effect that object.'

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12. Delivery of the cargo. The ship having arrived at the destination of the cargo, and being first properly moored, the master is to deliver the goods to the consignee. It seems to be well settled in England and America, that a delivery at any usual landing place, when there are no special directions to the contrary, is all that is required of the master, provided he gives notice to the

1 Willard v. Dorr, 3 Mason's R. 161. Leman v. Walker, 9 Mass. R. 404. Smith v. Gilbert, 4 Day's Cases, 105.

2 Jones's Bailm. 121. Cheviot v. Brooks, 1 Johns. R. 364.

3 Cheviot v. Brooks, 1 Johns. R. 364.

▲ Hannay v. Eve, 3 Cranch's R. 243.

5 Ord. of Wisbuy, art. 36.

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Hyde v. Trent. and Mers. Nav. Co., 5 T. R. 389. Chickering v. Fowler, 4 Pick. 371.

consignee, that he may come and take them. But if the consignee is unable or unwilling to receive them, the master cannot discharge himself from responsibility by leaving the goods on the wharf, but it is his duty to take care of them for the owner, unless the consignee is under an obligation to receive them, in which case they will be at his risk.3

It has been held, in England, that if the consignee requires the master to deliver the goods to himself, on board the ship, and not to land them on the wharf, that the master must obey the request; for the wharfinger cannot insist that the goods shall be landed on his wharf, though the vessel be moored against it.*

Until some such delivery as above indicated, the master remains responsible for the goods. If they are lost in the ship's boat, being on the way from the ship to the shore, he is responsible, unless such risk is expressly guarded against in the bill of lading. But if the owner receives them in a lighter from the ship, or in any way. takes the custody of them before they are landed, the master's responsibility ceases.5

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Strong v. Natally, 4 Bos. and Pul. 16. Garnett v. Wilson, 5 B. and Ald. 59. Ostrander v. Brown, 15 Johns. R. 39. 2 Ostrander v. Brown, 15 Johns. R. 39. 371. Mayell v. Potter, 2 Johns. Cas. 371.

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Chickering v. Fowler, 4 Pick.

Johnson v. Benson, 1 B. and

Bing. 454. The full consideration of this subject

the carrier's risk cannot find space in this work.

the determination of The reader is referred

to Story on Bailm. sec. 532, et seq. Abbot on Ship. part 3, ch. 3, sec. 11. 3 Kent's Comin. p. 214.

CHAPTER III.

OF THE MASTER'S RELATION TO THE FREIGHT.

FREIGHT, in the general legal sense of the term, means all rewards, hire or compensation, paid for the use of ships. In this sense, it includes as well the compensation paid, or agreed to be paid, for the transportation of passengers, as of merchandise. It is of some moment, at the present day, both to masters and mariners, that this definition should not be restrained in its scope to the merely common acceptation in which it signifies only the compensation for the carriage of goods; since great numbers of persons are now employed upon ships, whose freight, in this latter sense, bears a small proportion to the money received or contracted for from passengers, and in some cases might be insufficient for the payment of the wages due. There is no authority, that I am aware of, for the limited definition which would exclude those interested in the freight, from the same rights connected with passage money, as they would have in money received or earned in the transportation of goods. There

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Pothier, Traite de Charte-Partie, n. 1, defines freight as "the reward which one agrees to pay for the hire of a vessel." Valin defines it as "the price due for the hire of a ship, or for the transportation of merchandise." It is called freight, (fret) in the Atlantic-nolis, in the Mediterranean. Comm. tome i, p. 639.

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is, however, authority for the broad definition above given, in respect to the rights of seamen; and it has also been held that passage money and freight are governed by the same rules, as between the passenger or freighter, and the ship-owner and master. So too, it was held that the master may detain the luggage of a passenger, for the passage money which is to be considered as payable in respect of the person and his baggage, in like manner as he may detain the goods of a shipper for freight due.3

Freight, then, being the earnings of the ship, the master, as the general agent and representative of the owner, has certain powers in regard to it, which are ample for its security and due collection; and as the special employer of the ship, in which character he is, to some extent, treated by the law, he has certain other powers, which spring from this latter capacity, as well as from the agency with which he is clothed; and finally, as the servant of the owner, having performed labor in his behalf for hire, he has certain other relations to the money of his employer, which the law has established for the protection of his compensation.

1. As the general agent and representative of the

1 Giles v. The Cynthia, 1 Peters's Adm. R. 206. Howland v. The Lavina, Ibid. 126. So also, the Consolato, in defining a passenger: Tot hom es appelat pelegri qui dó NOLIT de la sua persona e de roba qui no sia mercaderia, é tot hom qui port de deu quintars en avall, deu donar NOLIT de la sua persona." "Every man is called a passenger, who gives FREIGHT for his person and for his effects which are not merchandise; and every man who carries less than ten quintals, ought to pay FREIGHT for his person." Ch. 68, [113], Pardessus, tome ii, p. 115.

2 Mulloy v. Backer, 5 East's R. 316. Moffat v. E. 1. Company, 10 East's R. 468. Watson v. Duykinck, 3 Johns. R. 335.

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