There are two other cases, in which the master, being temporarily restrained from performing his contract, may detain the goods until such temporary restraint is removed, and then demand the full freight, on delivery of the goods. Thus where the vessel is detained by an embargo at the port of departure, or in the course of the voyage, the master may wait till the embargo is removed, and then carry the cargo on to its place of destination; and if the owner of the cargo insists on receiving it short of the port of destination, he must pay the full freight.' So too, in the case of a blockade, or hostile investment of the port of departure, after the voyage has actually commenced, the contract of affreightment is not dissolved. The master may retain the goods until he can prosecute the voyage with safety; and he is not bound to surrender them to the proprietor, unless he is tendered his full freight. The reason in both these cases is, that the impediment is temporary, and does not break up the voyage by rendering the performance of the contract impossible. If, however, the cargo be of such a perishable nature, that it will not endure the delay of the embargo or blockade at the port of departure, Sir William Scott of cases where the whole freight is held to be due - cases of capture by an enemy upon the peculiar principles of prize law, acting on the maxim that capture is delivery. See The Race-Horse, 3 Rob. Adm. R. 101. The Martha, 3 Ibid. 106. The Hoffrung, 6 Ibid. 231. See also an analysis of these cases and their bearing on the ordinary cases of claim for full freight, in The Nathaniel Hooper, ubi supra. 'Hadley v. Clarke, 8 T. R. 259. M'Bride v. Mar. Ins. Co., 5 Johns. R. 308. Baylies v. Fettyplace, 7 Mass. R. 325. 2 Palmer v. Lorillard, 16 Johns. R. 348. L'Ord. de la Marine, liv. 3, tit. 3, art. 15, and Valin, Comm. tome i, 656, 657. Pothier, Charte-Partie, n. 69, 100, 101. has held that no freight is due, as it is then impossible to fulfil the contract.' The French writers on maritime law lay down the same principle. But if the voyage be broken up, after its commencement, by war, or interdiction of commerce with the place of destination, the contract is dissolved, and no freight is earned.3 Such are the principles which govern the right to demand a full freight. What, then, are the cases in which a pro rata, or proportional freight may be demanded? The general principle of the maritime law is, that the contract for the conveyance of merchandise on a voyage, is in its nature an entire contract, and unless it be completely performed by the delivery of the goods at the place of destination, no freight is due; for a partial conveyance is not within the terms or the intent of the contract. Thus, we have already seen, that where the ship becomes innavigable, the master is bound to repair it, or to procure another vessel, the freighter being bound 1 The Isabella, 4 Rob. Adm. R. 77. 2 Valin, Comm. tome. i, p. 628. Pothier Charte-Partie, n. 102. 3 Scott v. Libby, 2 Johns. R. 336. The Hiram, 3 Rob. Adm. R. 180. Liddard v. Lopes, 10 East's R. 526. The French rule is different. By the Ordinance, liv. 3, tit. 3, art. 15, it is provided that where, after the voyage is commenced, commerce is prohibited by war or otherwise, with the country to which the vessel is destined, and the ship is obliged to return with the cargo, the outward freight is still due. But if the execution of the contract is only retarded, the parties by the same law were to wait until the obstacle is removed. As, if the port to which the vessel is destined be only closed, by an order of the prince, or by a blockade, or the vessel be arrested by a vis major, both parties are bound to wait for the removal of the impediment, without damage on either side. L'Ord de la Marine, liv. 3, tit. 1, art. 8. Valin, Comm. tome i, 617. Pothier, Charte-Partie, n. 101. 4 The Ship Nathaniel Hooper, 3 Sumner's R. Post et al. v. Robertson, 1 Johns. R. 24. Caze v. Baltimore Ins. Co., 7 Cranch's R. 358. Cook v. Jennings, 7 T. R. 381. Abbot on Shipping, part 3, ch. 7, sec. 1, p. 273. 3 Kent's Comm. Lect. 47, p. 228. to wait a reasonable time for this purpose: and this is necessary to entitle the master to any freight. But if the ship is forced into an intermediate port, and is unable to prosecute the voyage, and the owner of the goods voluntarily accepts them, or insists on their being delived up to him, the law implies a new contract, viz.—to pay freight in the proportion of the voyage performed.3 The master may hypothecate the freight by a bottomry bond, under the same circumstances of necessity in which he is allowed to give that security on the ship itself. Together with the ship, it is to be hypothecated before the cargo: for the master is not authorized to touch the cargo, unless he cannot obtain the necessary supplies, upon the credit of the ship and freight. And it seems that if the freight happened to be omitted in the literal terms of the bond, it would still be liable, when the bond comes to be enforced, to the extent of its amount, al 1 Ante, Part III, ch. 2. Clark v. Mass. F. 10 East's R. 394. Saltus v. Ocean Ins. Co., 12 6 Cowen's R. 270. The Ship * Luke v. Lyde, 2 Burr. 889. Schiefflin v. N. York Exchg. Ins. Co., 9 Johns. R. 21. Searle v. Scovell, 4 Johns. Ch. R. 218. & Mar. Ins. Co., 2 Pick. R. 104. Hunter v. Prinsep, Mumford v. Com. Ins. Co., 5 Johns. R. 262. Johns. R. 112. Treadwell v. Union Ins. Co., Nathaniel Hooper, 3 Sumner's R. 542. 3 Laws of Oleron, art. 4, Pardessus 1, 325. L' Ord de la Marine, liv. 3, tit. 3, art. 21, 22. Luke v. Lyde, 2 Burr. 883. Cooke v. Jennings, 7 T. R. 381. Hunter v. Prinsep, 10 East's R. 378. Liddard v. Lopes, 10 Ibid. 526. Rob- Griggs v. Austin, 3 Pick. R. 20. The Packet, 3 Mason's R. 255. The Augusta, 1 Dods. Adm. R. 283. The though the cargo alone had been made immediately answerable to the foreign lender, who has nothing to do with averages of any kind.1 Where freight is pledged in a bottomry bond, it means the freight of the whole voyage, and not the freight of that part of the voyage unperformed at the time of giving the bottomry bond. So too, it seems that freight made in a subsequent voyage may be pursued, if the owner has appropriated the freight of the first voyage, before the bottomry bond holder could reach it; the court of Admiralty exercising its equity jurisdiction for this purpose.3 And where the freight to be made on a voyage is pledged in a bottomry bond, the freight earned from sub-shippers of goods, by permission of the charterers of the whole ship, is liable as against them, in payment of the bond given at the port of the charterers, for advances made subsequently to the charter-party.1 The master's lien on the freight for his wages, advances and expenses will be considered in the next chapter. 'The Gratitudine, 3 Rob. Adm. R. 240. The Zephyr, 3 Mason's R. 341. 3 The Jacob, 4 Rob. Adm. R. 245. • The Eliza, 3 Hagg. Adm. R. 87. CHAPTER IV. OF THE MASTER'S WAGES, DISBURSEMENTS AND AD VANCES. As the law has distinguished the case of the master from that of all the other mariners, in respect to his wages, and as in the course of his agency the ship-owner often becomes indebted to him for advances made or liabilities incurred on account of the ship, it is proper to treat of these topics separately from the general case of the mariner. And first As to his wages. The master is ordinarily hired by signing the shipping articles, which contain his contract in respect to wages and the voyage, as well as that of the other seamen. The hiring may however be by any other writing, or by parol.' But when a rate of wages is specified in the articles against the name of the master, they are prima facie evidence of his contract, and are as much to be resorted to in any controversy between him and his owner, as between the owner and the seamen generally,2 1 Moore v. Jones, 15 Mass. R. 424. • Willard v. Dorr, 3 Mason's R. 168. The articles may be controverted by offering evidence of fraud, mistake, or interpolation. But in the absence of such evidence, they are presumed to be as well known to the owner as the master. Ibid. |