Contract of Affreightment

(1.) Of the charter party.

A charter party is a contract of affreightment in writing, by which, the owner of a ship lets the whole, or a part of her, to a merchant, for the conveyance of goods, on a particular voyage, in consideration of the payment of freight.

All contracts under seal were anciently called charters, and they used to be divided into two parts, and each party interested took one; and this was the meaning of the charta partita. It was a deed or writing divided, consisting of two parts, like an indenture at common law.¹ Lord Mansfield observed, that the charter party was an old informal instrument, and by the introduction of different clauses at different times, it was inaccurate, and sometimes contradictory. But this defect has been supplied, by giving it, as mercantile contracts usually receive, a liberal construction, in furtherance of the real intention and the usage of trade.

This mercantile lease of a ship describes the parties, the ship, and the voyage, and contains, on the part of the owner, a stipulation as to sea-worthiness, and as to the promptitude with which the vessel shall receive the cargo, and perform the voyage; and the exception of such perils of the sea for which the master and ship owners do not mean to be responsible. On the part of the freighter, it contains a stipulation to load and unload within a given time, with an allowance of so many lay, or running days, for loading and unloading the cargo, and the rate and times of payment of the freight, and rate of demurrage beyond the allotted days.²

When the goods of several merchants, unconnected with each other, are laden on board, without any particular contract of affreightment with any individual for the entire ship, the vessel is called a general ship, because open to all merchants; but when one or more merchants contract for the ship exclusively, it is said to be a chartered ship. The ship may be let in whole, or in part, and either for such a quantity of goods by weight, or for so much space in the ship, which is letting the ship by the ton. She may also be hired for a gross sum as freight for the voyage, or for a particular sum by the month, or any other determinate period, or for a certain sum for every ton, cask, or bale of goods put on board; and when the ship is let by the month, the time does not begin to run until the ship breaks ground, unless it be otherwise agreed.³ The merchant who hires a ship, may either lade it with his own goods, or wholly underlet it, upon his own terms; and if no certain freight be stipulated, the owner will be entitled to recover, upon a quantum meruit, as much freight as is usual under the like circumstances, at the time and place of the shipment.³

It is the duty of the owner of the ship, not only to see that she is duly equipped, and in a suitable condition to perform the voyage, but he is bound to keep her in that condition throughout tho voyage, unless he be prevented by perils of the sea.⁴ If, in consequence of a failure in the due equipment of the vessel, the charterer does not use her, he is not bound to pay any freight; but if he actually employs her, he must pay the freight, though he has his remedy on the charter party for damages sustained, by reason of the deficiency of the vessel in her equipment.⁵ The freighter is bound on his part not to detain the ship beyond the stipulated or usual time, to load, or to deliver the cargo, or to sail. The extra days beyond the lay days, (being the days allowed to load and unload the cargo) are called days of demurrage; and that term is likewise applied to the payment for such delay, and it may become due either by the ship’s detention, for the purpose of loading or unloading the cargo, either before, or during, or after the voyage, or in waiting for convoy.⁶ If the claim for demurrage rests on express contract, it is strictly enforced, as where the running days for delivering the cargo under the bill of lading had expired, even though the consignee was prevented from clearing the vessel of the goods by the default of others.⁷

The old and the new French codes of commerce require the charter party to be in writing, though Valin holds that the contract, if by parol, would be equally valid and binding.⁸ fit the English law, the hiring of ships without writing is undoubtedly valid; but it would be a very loose and dangerous practice, at least in respect to foreign voyages. In the river and coasting trade, there is less formality and less necessity for it; and the contract is, no doubt, frequently without the evidence of deed or writing.⁹

If either party be not ready by the time appointed for loading the ship, the other party, if he be the charterer, may seek another ship, or if he be the owner, another cargo. This right arises from the necessity of precision and punctuality in all maritime transactions. By a very short delay, the proper season may be lost, or the object of the voyage defeated. And if the ship he loaded only in part, and she be hired exclusively for the voyage, and to take in a cargo at certain specified rates, the freighter is entitled to the full enjoyment of the ship; for he is answerable to the owner for freight, not only for the cargo actually put on hoard, but for what the vessel could have taken, had a full cargo been furnished.¹¹ The master has no right to complete the lading with the goods of other persons, without the consent of the charterer; and if he grants that permission, the master must account to him for the freight. He has no right to complain, if the charterer refuses to grant the permission, or complete the landing, provided he has cargo enough to secure his freight. This was the regulation of the French ordinance, and it has been adopted into the new code.¹²

By the contract the owner is bound to see that the ship be seaworthy, which means that she must be tight, staunch and strong, well furnished, manned, victuals, and, in all respects, equipped in the usual manner, for the merchants’ service in such a trade. If there should be a latent defect in the vessel, unknown to the owner, and undiscoverable upon examination, yet the better opinion is, that the owner must answer for the damage occasioned by the defect. It is an implied warranty in the contract, that the ship be sufficient for the voyage, and the owner, like a common carrier, is an insurer against every thing but the excepted perils.¹³ To this head of seaworthiness, may be referred the owner’s obligation to see that the ship is furnished with all the requisite papers according to the laws of the country to which she belongs, and according to treaties, and the law of nations. Such documents are necessary to secure the vessel from disturbance at home, on the high seas, and in foreign ports.¹⁴ If the charter party contains any stipulation on the part of the owner to keep the ship in good order during the voyage the entire expenses of the repairs requisite in the course of the voyage are then to be borne by the owner, and are not, in that case, the subject of general average or contribution.¹⁵ But the owner does not insure the cargo against the perils of the sea. He is answerable for his own fault, or negligence, or those of his agents, and for defects in the ship, or her equipment, and generally, as a common carrier, he is answerable for all losses other than what arise from the excepted cases of the act of God, and public enemies.¹⁶ The responsibility of the owner begins where that of the wharfinger ends, and when the goods are delivered to some accredited person on board the ship.¹⁷ If the ship had been advertised by the agent of the owner for freight as a general ship, and the notice had stated, that she was to sail with convoy, this would amount to an engagement to that effect; and if she sail without convoy, and be lost, the owner becomes answerable to the shipper in damages, for the breach of that representation.¹⁸

(2.) Of the bill of lading.

In execution of the contract of charter party, the master of the ship signs a bill of lading, which is an acknowledgment of the receipt of the goods on board, and of the conveyance of them which he assumes. The bill of lading contains the quantity and marks of the merchandise, the names of the shipper and consignee, the places of departure and discharge, the names of the master, and of the ship, with the price of the freight. The charter party is the contract for the hire of the ship, and the bill of lading for the conveyance of the cargo; and though it be signed by the master he does it as agent for the owners, and it is a contract binding upon them.¹⁹ By the bill of lading, the master engages as a common carrier to carry and deliver the goods to the consignee, or his order; and, by the common law, owners were responsible for damages to goods on board, to the full extent of the loss. But, in England, by the statute of 53 Geo. III. c. 1.59., owners, and part owners of ships, are not liable beyond the value of the ship and freight, even though the loss was occasioned by the misconduct of the master, and a part owner. This statute assimilated the law of England to the law of France, and other commercial countries; and the great principle was, to limit the responsibility of part owners to the amount of their respective capitals embarked in the ship. The value of the ship was to be calculated at the time of the loss, and the freight, in the statute, means all the freight, whether paid in advance or not.²⁰

There are commonly three bills of lading; one for the freighter, another for the consignee, factor, or agent abroad, and a third is usually kept by the master for his own use. It is the document and title of the goods sent; and, as such, if it be to order, or assigns, is transferable in the market. The endorsement and delivery of it transfers the property in the goods from the time of the delivery.²¹

Where there are several bills of lading, each is a contract in itself as to the holder of it, but the whole make only one contract as to the master and owners. If the several parts of the bill of lading be endorsed to different persons, a competition may arise for the goods; and the rule generally is, that if the equities be equal, the property passes by the bill first endorsed.²²

(3.) Of the carriage of the goods.

When the ship is hired, and the cargo laden on board, the duties of the owner, and of his agent, the master, arise in respect to the commencement, progress, and termination of the voyage. Those duties are extremely important to the interests of commerce, and they have been well and accurately defined in the maritime law.²³

When the voyage is ready, the master is bound to sail as soon as the wind and tide permit; but he ought not to set out in very tempestuous weather.²⁴ If, by the charter party, the ship was to sail by a given day, the master must do it, unless prevented by necessity; and if there be an undertaking to sail with convoy, he is bound to go to the place of rendezvous, and place himself under the protection and control of the convoy, and continue, as far as possible, under that protection, during its course. ²⁵ He is bound, likewise, to obtain the requisite sailing instructions for the convoy;²⁶ but these covenants to sail with the first fair wind, and with convoy, are not conditions precedent to the recovery of freight., and a breach of them only goes to the question of damages.²⁷

The master is bound, likewise, to proceed to the port of delivery without delay, and without any unnecessary deviation from the direct and usual course. If he covenants to go to a loading port by a given time, he must do it, or abide the forfeiture;²⁸ and if he be forced by perils out of his regular course, he must regain it with as little delay as possible. Nothing but some just and necessary cause, as to avoid a storm, or pirates, or enemies, or to procure requisite supplies or repairs, or to relieve a ship in distress, will justify a deviation from the regular course of the voyage.²⁹ Nor has the captain any authority to substitute another voyage in the place of the one agreed upon between his owners and the freighters of the ship. Such a power is altogether beyond the scope of his authority as master.³⁰ In case of necessity, as where the ship is wrecked, or otherwise disabled, in the course of the voyage, and cannot be repaired, or cannot under the circumstances without too great delay and expense, the master may procure another competent vessel to carry on the cargo and save his freight. If other means to forward the cargo can be procured, the master must procure them, or lose his freight; and if he offers to do it, and the freighter will not consent, he will then be entitled to his full freight.³¹

The Rhodian law³² exempted the master from his contract to carry the goods, if the ship became unnavigable by the perils of the sea. Faber and Vinnius were of opinion, that by the Roman law the master was not bound, in such a case, to seek another ship, because the contract related only to the ship that was disabled.³³ The laws of Oleron, and the ordinances of Wisbuy, gave the power to the master to hire another vessel, if he choose to do so, and earn freight; but the marine ordinance of Lewis XIV. declared it to be the duty of the master to hire another ship in such a case, if it be in his power.³⁴

The French jurists differ in opinion in respect to the obligation of the master to hire another vessel to carry on the cargo, when his own becomes irreparable. Valin and Pothier contend, that the master is no further bound to procure another vessel, than by losing his freight for the entire voyage if he omits to do it; for, by the contract of affreightment, he only engaged to furnish his own vessel, and when, by the perils of the sea, or by some superior force, for which he is not responsible, he becomes unable to furnish it, all that he is bound to do, by the principles of the contract, is to discharge the freighter from the freight for the residue of the voyage. But Emerigon insists, that they are mistaken in their construction of the ordinance, and that the master is guilty of a breach of duty, if he refuses to procure another vessel, and take on the cargo, if it be in his power, and that this duty results from the nature of his trust.³⁵

The new French code has followed the words of the ordinance, and declared, that if the vessel becomes disabled, and the master can have her repaired, the freighter is bound to wait, or pay the whole freight; and that if the vessel cannot be repaired, the master is bound to hire another, and if he cannot hire another, the freight is due only in proportion to the voyage performed. Boulay Paty, in his commentaries on the new code, adopts the construction of Emerigon, and holds his reasoning to be conclusive.³⁶

The English rule undoubtedly is, that if the ship be disabled from completing the voyage, the ship owner may still entitle himself to the whole freight, by forwarding the goods by some other means to the place of destination; and he has no right to any freight, if they be not so forwarded, unless it be dispensed with, or there be some new contract upon the subject.³⁷ In this country we have followed the doctrine of Emerigon, and the spirit of the English cases, and hold it to be the duty of the master, from his character of agent of the owner of the cargo, which is cast upon him from the necessity of the case, to act in the port of necessity for the best interest of all concerned; and he has powers and discretion adequate to the trust, and requisite for the safe delivery of the cargo at the port of destination. If there be another vessel, in the same or in a contiguous port, which can be had, the duty is clear and imperative upon the master to hire it; but still the master is to exercise a sound discretion adapted to the case. He may tranship the cargo, if he has the means, or let it remain. He may bind it for repairs to the ship. He may sell part, or hypothecate the whole.

If he hires another vessel for the completion of the voyage, he may charge the cargo with the increased freight, arising from the hire of the new ship; and this power is expressly given him by the old and the new ordinances of France, and it is established by decisions here.³⁸ The master may refuse to hire another vessel, and insist on repairing his own, and whether the freighter be bound to wait for the time to repair, or becomes entitled to his goods without any charge of freight, will depend upon circumstances. What would be a reasonable time for the merchant to wait for the repairs, cannot be defined, and must be governed by the facts applicable to the place and the time, and to the nature and condition of the cargo. A cargo of a perishable nature, may be so deteriorated, as not to endure the delay for repairs, or to be too unfit and worthless to be carried on.³⁹ The master is not bound to go to a distance to procure another vessel, nor to encounter serious impediments in the way of putting the cargo on board another vessel. His duty is only imperative when another vessel can be had in the same or in a contiguous port.⁴⁰

In the course of the voyage, the master is bound to take all possible care of the cargo, and he is responsible for every injury which might have been prevented by human foresight and prudence, and competent naval skill. He is chargeable with the most exact diligence.⁴¹ If the ship be captured during the voyage, the master is bound to render his exertions to rescue the property from condemnation, by interposing his neutral claims, and exhibiting all the documents in his power for the protection of the cargo.⁴² We have already seen, in what cases and to what extent the master may hypothecate or sell the cargo at a port of necessity; and if the ship, relieved at the expense of the goods pledged or sold, should afterwards perish, with the residue of the cargo on board, before arrival at the port of destination, the better opinion is, that the owner is not entitled to payment for the goods sold. The merchant is not placed in a worse situation by the sale of the goods than if they had remained on board the ship. But the foreign authorities are very much at variance on the point, and it remains yet to be settled in the English and American law.⁴³

(4.) Of the delivery of the goods at the port of destination.

On arrival of the ship at the place of destination, the cargo is to be delivered to the consignee, or to the order of the shipper, on production of the bill of lading and payment of the freight. The English practice is, to send the goods to the wharf, with directions to the wharfinger not to part with them, until the freight and other charges are paid, provided the master be doubtful of the payment; for, by parting with the possession, the master loses his lien upon them for the freight.⁴⁴ The cargo is bound to the ship as well as the ship to the cargo; but the master cannot detain the goods on board the ship until the freight be paid, for the merchant ought to have an opportunity to examine the condition of them previous to payment.⁴⁵ The foreign ordinances of Wisbuy, and of Louis XIV, allow the master to detain the goods, while in the lighter or barge, on the passage to the quay, for they are still in his possessions.⁴⁶ The manner of delivery, and the period at which the responsibility of the owners and master ceases, will much depend upon usage.⁴⁷ The general rule is, that delivery at the wharf, (when there are no special directions to the contrary,) discharges the master.⁴⁸ But the better opinion is, that there must be a delivery at the wharf to some person authorized to receive the goods; and the master cannot discharge himself, by leaving them naked and exposed at the wharf. His responsibility will continue until there is actual delivery, or some act which is equivalent, or a substitute for it, unless the owner of the goods, or his agent, had previously assumed the charge of the goods.⁴⁹

It is often difficult for the master of a vessel to know to whom he can safely deliver the goods, in case of conflicting claims between consignor and consignee, or consignor and the assignee of the consignee. Prudence would dictate that he deliver the goods to the party upon whose indemnity he can most safely rely. But he ought not to be put to the peril and necessity of indemnity; and it is desirable that he should know to whom, of right, he can deliver the goods. If the consignee has failed, he ought to deliver to the claimant, on behalf of the consignee; and if the consignee has assigned the bill of lading, and the rights of the consignor be still interposed and contested, it is safest for the master to deposit the goods with some bailee, until the rights of the claimants are settled, as they can always be, upon a bill of interpleader in chancery, to be filed by the master.⁵⁰ Having made a consignment, the consignor or seller has not an unlimited power to vary it at pleasure. He may do it only for the purpose of protecting himself against the insolvency of the buyer or consignee.⁵¹

(5.) Of the responsibility of the ship owner.

The causes which will excuse the owners and master for the non-delivery of the cargo, must be events falling within the meaning of one of the expressions, act of God, and public enemies; or they must arise from some event expressly provided for in the charter party.⁵² Perils of the sea denote natural accidents peculiar to that element, which do not happen by the intervention of man, nor are to be prevented by human prudence. A casus fortuitus was defined in the civil law to be, quod damno fatali contingit, cuivis diligentissimo possit contingere. It is a loss happening in spite of all human effort and sagacity. The only exception to this definition is, the case of a vessel captured and plundered by pirates, and that has been adjudged to be a peril of the sea.⁵³ A loss by lightning is within the exception of the act of God; but a loss by fire proceeding from any other cause, is chargeable upon the ship owner.⁵⁴ But the moment the goods are transferred from the ship or the lighter to the warehouse, this extraordinary responsibility ends, and the warehouseman is not so responsible.⁵⁵

It is often a difficult point to determine, whether the disaster happened by a peril of the sea, or unavoidable accident, or by the fault, negligence, or want of skill of the master. If a rock or a sand bar be generally known, and the ship be not forced upon it by adverse winds or tempests, the loss is to be imputed to the fault of the master. But if the ship be forced upon such a rock or shallow by winds or tempests, or if the bar was occasioned by a recent and sudden collection of sand, in a place where ships could before sail with safety, the loss is to be attributed to a peril of the sea, which is the same as the vis major or casus fortuitus, of the civil law.⁵⁶ What is an excusable peril, depends a good deal upon usage, and the sense and practice of merchants; and it is a question of fact, to be settled by the circumstances peculiar to the case. The English statute law has exempted ship owners in some of these hard cases; but I do not know of any such statute exemptions in this country.⁵⁷

(6.) Of the duties of the shipper.

We have seen what are the general duties of the master. Those on the part of the charterer are, to use the ship in a lawful manner, and for the purpose for which it was let. Usually, the command of the ship is reserved to the owner, and to the master by him appointed, and the merchant has not the power to detain the ship beyond the stipulated time, or employ her in any other than the stipulated service, and if he does he must answer in damages.⁵⁸ If the freighter puts one board prohibited, or contraband goods, by means whereof the ship is subjected to detention and forfeiture, he oust answer to the ship owner for the consequences of the act.⁵⁹ and if the merchant declines to lade the ship according to contract, or to furnish a return cargo, as he had engaged to do, he must render in damages due compensation for the loss; and the English law leaves such questions at large to a jury, without defining beforehand the rate of compensation, in imitation of some of the ordinances in the maritime codes.

(7.) Of the payment of freight.

Freight, in the common acceptation of the term, means the price for the actual transportation of goods by sea from one place to another; but, in its more extensive sense, it is applied to all rewards or compensation paid for the use of ships.⁶⁰ The general rule is that the delivery of the goods at the place of destination, according to the charter party, is necessary, to entitle the owner of the vessel to freight. The conveyance and delivery of the cargo is a condition precedent, and must be fulfilled. A partial performance is not sufficient, nor can a partial payment, or rateable freight, be claimed, except in special cases, and those cases are exceptions to the general rule, and called for by principles of equity.

The amount of freight is usually fixed by agreement between the parties, and if there be no agreement, the amount is ascertained by the usage of the trade, and the reason of the case. If the hiring be of the whole ship, or for an entire part of her for the voyage, the merchant must pay the freight, though he does not fully lade the ship. But if he agrees to pay in proportion to the amount of the goods put on board, and does not agree to provide a full cargo, the owner can demand payment only for the cargo actually shipped. 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; and this is sometimes termed dead freight, in contradistinction to freight due for the actual carriage of goods.⁶¹

It is supposed to be the doctrine of the case of Bell v. Puller,⁶² that the master would be entitled to freight for bringing back the outward cargo, if it could not be disposed of, though the charter party was silent as to a return cargo. It would stand upon the equity of the claim to dead freight.⁶³ The French law, in such a case, also allows freight for bringing back the cargo, because it could not be sold, or was not permitted to be landed.⁶⁴

If there be no express agreement in the case, the master is not bound to part with the goods until the freight be paid; and if the regulations of the revenue require the goods to be landed and deposited in a public warehouse, the master may enter them in his own name, and preserve the lien. The ship owner’s lien for freight is gone when the charterer is constituted owner, and takes exclusive possession for the voyage, or when the payment of the freight is, by agreement, postponed beyond the time, or at variance with the time and place, for the delivery of the goods. But without a plain intent to the contrary, the ship owner will not be presumed to have relinquished his lien on the cargo for the freight, notwithstanding he has chartered the vessel to another.⁶⁵ When the goods are to be delivered to the consignee on payment of freight, the consignee makes himself responsible by receiving the goods under the usual condition expressed in the bill of lading. And if the goods, by the bill of lading,⁶⁶ were to be delivered to B., or his assigns, he or they paying freight, and the assignee receives the goods, he is responsible to the master for the freight, under the implied undertaking to pay it.⁶⁷ So, if the master delivers the goods without payment of the freight, he may sue the consignee to whom the goods were to be delivered, on payment of freight, upon an implied promise to pay the freight, in consideration of his letting the goods out of his hands before payment.⁶⁸ It was once held, that if the master parted with the goods to the consignee without securing his freight, he was deprived of all recourse to the consignor; but it is now decided otherwise.⁶⁹ The buyer of the goods from the consignee is not answerable for the freight, for that would prove to be a most inconvenient check to the transactions of business; and the buyer takes independent of the charge of freight, unless that charge forms part of the terms of sale. Nor would he be liable even if he should enter the goods at the custom house in his own name, while the freight was unpaid.⁷⁰

If part of the cargo be sold on the voyage from necessity, the owner, as we have, seen, pays the value at the port of delivery, deducting his freight, equally as if the goods had arrived. But if the ship be prohibited an entry by the government of the country, and such prohibition takes place after the commencement of the voyage, and the cargo be brought back, the freight for the outward voyage has been held to have been earned; and the case was distinguished (thought, I think, the distinction is not very obvious) from that of a blockade of the port of destination, and decided on the authority of the French ordinance of the marine.⁷¹ Nothing can be more just, observes Valin, than that the outward freight should be allowed in such a case, since the interruption proceeds from an extraordinary cause, independent of the ordinary maritime perils.⁷²

The case of a blockade of, or interdiction of commerce with the port of discharge, after the commencement of the voyage, is held to be different; for, in that case, the voyage is deemed to be broken up, and the charter party dissolved; and if the cargo, by reason of that obstacle, be brought back, no freight is due.⁷³ The same principle applies if the voyage be broken up and lost, by capture upon the passage, so as to cause a complete defeasance of the undertaking, notwithstanding there was a subsequent recapture, as in the case of the Hiram.⁷⁴ On the other hand, an embargo detaining the vessel at the port of departure, or in the course of the voyage, does not, of itself work a dissolution of the contract. It is only a temporary restraint, which suspends, for a time, its performance, and leaves the rights of the parties, in relation to each other, untouched.⁷⁵

If the ship be laden, and be captured before she breaks ground, and afterwards recaptured, but the voyage broken up, the ship owners are not entitled to any freight, though, by the usage of the trade, the ship was laden at their expense. It is requisite that the ship break ground, to give an inception to freight.⁷⁶ It is the same thing with a blockade, or hostile investment of the port of departure. Such an obstacle does not discharge the contract of affreightment, because it is merely a temporary suspension of its performance; and the ship owner may detain the goods until he can prosecute the voyage with safety, or until the freighter tenders him the full freight. This was the decision in the case of Palmer v. Lorillard,⁷⁷ in which the doctrine was extensively examined; and it was shown, by a reference to the foreign ordinances, and the soundest classical writers on maritime law, that the master, in the case of such an invincible obstacle of a temporary nature to the prosecution of the voyage, is entitled to wait for the removal of it, so that he may earn his freight, unless the cargo consists of perishable articles which cannot endure the delay. He stands upon a principle of equity which pervades the maritime law⁷⁸ of Europe, if he refuses to surrender the cargo to the shipper without some equitable allowance in the shape of freight, for his intermediate service.

When the goods become greatly deteriorated on the voyage, it has been a very litigated question, whether the consignee was bound to take the goods, and pay the freight, or whether he might not abandon the goods to the master in discharge of the freight. Valin and Pothier entertained opposite opinions upon this question.⁷⁹ The former insists, that the regulation of the ordinance holding the merchant liable for freight on deteriorated goods, without the right to abandon them in discharge of the freight, is too rigorous to be compatible with equity. He says the cargo is the only proper fund and pledge for the freight, and that Casaregis was of the same opinion.

Pothier, on the other hand, was against the right of the owner to abandon the deteriorated goods in discharge of the freight; and this is the better opinion, and the one adopted in the case of Griswold v. The New York Insurance Company.⁸⁰ It is in accordance with the ordinances of the marine and of Rotterdam, and, with the new commercial code of France; and the latter puts an end to all further doubt and discussion on the subject in France.⁸¹ The ship owner performs his engagement when he carries and delivers the goods. The right to his freight then becomes absolute, and the carrier is no more an insurer of the soundness of the cargo, as against the perils of the sea, or its own intrinsic decay, than he is of the price in the market to which it is carried. If he has conducted himself with fidelity and vigilance in the course of the voyage, he has no concern with the diminution of the value of the cargo. It may impair the remedy which his lien afforded, but it does not affect his personal demand against the shipper.⁸²

If casks contain wine, rum, or other liquids, or sugar, and the contents be washed out, and wasted, and lost, by the perils of the sea, so that the casks arrive empty, no freight is due for them; but the ship owner would still be entitled to his freight, if the casks were well stowed, and their contents were essentially gone by leaking, or inherent waste, or imperfection of the casks.⁸³

Should the cargo consist of livestock, as is frequently the case in voyages from this country to the West Indies, and some of the horses or cattle, for instance, should die in the course of the voyage, without any fault or negligence of the master or crew, and there be no express agreement respecting the payment of freight, the general rule is, that the freight is to be paid for all that were put on board. But if the agreement was to pay for the transportation of them, then no freight is due for those that die on the voyage, as the contract is not, in that case, performed.⁸⁴ The foreign marine law allows freight paid in advance to be recovered back, if the goods be not carried, nor the voyage performed, by reason of any event not imputable to the shipper.⁸⁵ The reason is, that the consideration for the payment, which was the carriage of the goods, has failed.

But the marine ordinances admit, that the parties may stipulate that the freight so previously advanced shall, at all events, be retained. In Watson v. Duykinck,⁸⁶ the rule of the marine law was recognized, though it was not applied to that case, because the contract there appeared to be, that the freight was paid for receiving the passenger and his goods on board; and, in such a case, the payment is to be retained, though the vessel and cargo be lost on the voyage. The general principle of the marine law was admitted, in the fullest latitude, in Griggs v. Auston,⁸⁷ and whether the freight previously advanced is to be retained or returned, becomes a question of intention in the construction of the contract. The French ordinances require a special agreement to enable the ship owner to retain the freight paid in advance; and Valin says,⁸⁸ that many authors on maritime jurisprudence, as Kurick, Loccenius, and Straccha, will not allow even such a special agreement to be valid.⁸⁹

The English law is not so scrupulous, and does not require any such express stipulation, and allows the intention of the parties to retain the previously advanced freight to be more easily inferred. In De Silvale v. Kendall,⁹⁰ the Court of K. B. adopted a directly opposite principle, and observed, that if the charter party was silent, the law would require a performance of the voyage before freight was due; but the parties might stipulate, that part of the freight be paid in anticipation, and be made free from subsequent contingency of loss, by reason of loss of the subsequent voyage. If freight be paid in advance, and there be no express stipulation that it shall be returned in the event of freight not being earned, the inference was, that the parties did not intend that the payment of the part in advance should be subject to the risk of the remainder of the voyage; and without some provision of that kind, a new implied contract to that effect could not be raised.

The question, as to the right to a rateable freight, arises in two cases; (1.) when the ship has performed the whole voyage, and has brought only a part of her cargo to the place of destination; (2.) when she has not performed her whole voyage, and the goods have been delivered to the merchant, at a place short of the port of delivery. In the case of a general ship, or one chartered for freight, to be paid according to the quantity of goods, freight is due for what the ship delivers.⁹¹ The contract, in such a case, is divisible in its own nature. But if the ship be chartered at a specific sum for the voyage, and she loses part of her cargo by a peril of the sea, and conveys the residue, it has been a question, whether the freight could be apportioned. The weight of authority, in the English books, is against the apportionment of freight in such a case,⁹² and the question has been repeatedly discussed and determined of late years. It has been held, that the contract of affreightment was au entire contract; and unless fully performed by delivery of the whole cat-go, no freight was due under the charter party, in the case where the ship was chartered for a specific sum for the voyage. The delivery of the whole cargo is, in such a case, a condition precedent to the recovery of freight. The stipulated voyage must be actually performed. A partial performance is not sufficient, nor can a partial payment be claimed, except in special cases.⁹³

The apportionment of freight usually happens, when the ship is forced into a port short of her destination, and cannot finish the voyage. In that case, 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, because the freighter is the cause of the contract not being performed. But if he consents, and the master refuses to go on, he is not entitled to freight, because he has not performed his contract. To entitle himself to freight, the master must proceed, or offer to proceed, in another vessel, or repair his own, and take on the cargo; and if he proceeds, he reassumes his usual risk of losing the freight, by the loss of the cargo in the subsequent part of the voyage, or of earning freight by its safe arrival and delivery at the port of destination.

If, however, the merchant accepts the goods at the intermediate port, the general rule of the marine law is, that freight is to be paid according to the proportion of the voyage performed, and the law will imply such a contract. This doctrine pervades the marine ordinances and writers on marine law;⁹⁴ and it is now equally well settled in the English and American law, that freight, pro rata itineris, is due when the ship, by inevitable necessity, is forced into a port short of her destination, and unable to prosecute the voyage, and the goods are there voluntarily accepted by the owner. Such acceptance constitutes the basis of the rule for a pro rata freight; and it must be a voluntary acceptance, and not one forced upon the owner, by any illegal or violent proceeding. The numerous cases upon which this doctrine is sustained, are all founded upon that of Luke v. Lyde, and that case rested upon the decision in the House of Lords, in 1733, in Lutwidge & How v. Grey.⁹⁵ If the outward and homeward voyages be distinct, freight is recoverable for the one, though the other be not performed. But if, by the terms of the contract, they be one voyage, and the ship performs the outward, and fails to perform the homeward voyage, no freight is recoverable.⁹⁶

The rule by which the amount of the rateable freight is to be ascertained, is, to ascertain how much of the voyage had been performed when the disaster happened, which compelled the vessel to seek a port, according to the mode of adjustment pursued in Luke v. Lyde; or else to calculate how much of the voyage had been performed, when the goods arrived at the port of necessity, according to the better course pursued in the cases in this country.⁹⁷

(8.) Of loss from collision of ships.

This has been a very difficult subject for discussion and decision, and various opinions have been entertained by the writers on maritime law. The evidence as to the true cause of the collision is of difficult access. The accident usually happens in the darkness of night, or in a storm, and is necessarily accompanied with confusion and agitation. When the fact is clear, that a fault was committed by one party, or that he was in want of due skill or care, and the disaster was the consequence thereof, the party in fault must pay all the damages. There are settled nautical rules, by which, in most cases, the want of skill, or care, or duty, may be ascertained. Thus, the vessel that has the wind free, must get out of the way of the vessel that is close hauled.⁹⁸ So, a neglect of due means to check a vessel entering a river or harbor where others lie at anchor, is a fault which creates responsibility for damages which may ensue.⁹⁹ Where the collision arose by vis major, or physical causes exclusively, and without any negligence or fault, open or concealed, the damage must be borne where it falls.¹⁰⁰

The greatest difficulty on the subject has arisen in the cases in which the collision proceeded evidently from error, neglect, or want of sufficient precaution, but the neglect, or fault, was either inscrutable, or equally imputable to both parties. In this case, of blame existing which is undiscoverable, the marine law, by a rusticum judicium, apportions the loss, as having arisen equally by the fault of both parties.¹⁰¹ The rule is universally declared by all the foreign ordinances and jurists; and its equity and expediency apply equally where both parties are to blame, and where the fault cannot be detected. The general rule of the maritime law is, to make the ships contribute equally without regard to their relative value, and Valin considers this to be the shorter, plainer, and better rule.¹⁰² There has been much difference in the codes and authorities in maritime law, whether the cargo, as well as the ship, was to contribute to the loss. Valin contends, that the contribution is only between the ships, and that the cargoes are totally excluded from the benefit, as well as from the burden of contribution in the case of such a disaster. But in Le Neve v. Edinburgh and London Shipping Company, the cargo of the ship that was sunk and lost by the collision, received the benefit of the contribution.¹⁰³

(9.) Of general average.

The doctrine of general average grows out of the incidents of a mercantile voyage, and the duties which it creates apply equally to the owner of the ship, and of the cargo. General, gross or extraordinary average, means a contribution made by all parties concerned, towards a loss sustained by some of the parties in interest, for the benefit of all; and it is called general, or gross average, because it falls upon the gross amount of ship, cargo, and freight.

By the Rhodian law, as cited in the Pandects,¹⁰⁴ if goods were thrown overboard, in a case of extreme peril, to lighten and save the ship, the loss, being incurred for the common benefit was to be made good by the contribution of all. The goods must not be swept away by the violence of the waves, for then the loss falls entirely upon the merchant or his insurer, but they must be intentionally sacrificed by the mind and agency of man for the safety of the ship, and the residue of the cargo. The jettison must be made for sufficient cause, and not from groundless timidity. It must be made in a case of extremity, when the ship is in danger of perishing by the fury of a storm, or its laboring upon rocks or shallows, or is closely pursued by pirates or enemies; and then, if the ship, and the residue of the cargo, be saved by means of the sacrifice, nothing can be more reasonable than that the property saved should bear its proportion of the loss. The doctrine of general average is one of those rules of the maritime law which is built upon the plainest principles of justice; and it has, accordingly, recommended itself to the notice and adoption of all the commercial nations of the world. The title in the Pandects, De lege Rhodia de Jactu, has been the basis of the ordinances of modern Europe, on the subject of general average; and the doctrine of jettison was transplanted into the Roman law from the institutes of the ancient Rhodians.

A jettison is only permitted in cases of extreme necessity; and the foreign ordinances¹⁰⁵ require, that the officers of the ship, and the supercargo, if on board, should, if practicable, be previously consulted; and if the master, in a case of false alarm, makes a jettison, there is no contribution. A regular jettison, says Emerigon, is that which takes place with order, and without confusion, and is founded on previous deliberation.¹⁰⁶ But the irregular jettison is equally valid, for it takes place in the instant of a danger which is imminent and appalling, and when all formality and deliberation would be out of season, or impossible. All acts are precipitate, and commanded by that sense of self-preservation when life is in jeopardy, which is irresistible, and sways every consideration. Such a jettison is a species of shipwreck, and it is called semi-naufragium.¹⁰⁷ The captain must first begin the jettison with things the least necessary, the most weighty, and of least value, and nothing but the greatest extremity would excuse the master who should commence the jettison with money, and other precious parts of the cargo.¹⁰⁸

Before contribution takes place, it must appear that the goods sacrificed were the price of safety to the rest; and if the ship be lost, notwithstanding the jettison, there will be no ground for contribution.¹⁰⁹ All damage arising immediately from jettison, or other acts of necessity, is to be a matter of general average, and, therefore, if, in cutting away a mast, the cargo, by that means be injured, or if, in throwing over any part of the cargo, other parts of the cargo be injured, the damage goes into general average, because it is to be considered as part of the price of safety to the residue of the property.¹¹⁰ So, if a ship be injured by a peril of the sea, and be obliged to go into port to refit, the wages and provisions of the crew, during the detention, constitute the subject of general average, according to the decisions in New York and Massachusetts.¹¹¹ Those decisions are supported by the rule as laid down in Beawes,¹¹² and they are in coincidence with the law and practice of Holland and France.¹¹³

Lord Tenderden, in his treatise on shipping,¹¹⁴ observed, that the English law books furnished no decision on this point, and he thought it susceptible of a reasonable doubt, though his opinion was evidently against the justice and policy of the charge for contribution. Since he wrote, the question has been decided in the K. B. according to his opinion, and in a case in which he sustained and enforced a contrary opinion in his character of counsel.¹¹⁵ The result of the decisions in Plummer v. Wildman, and Power v. Whitmore,¹¹⁶ is, that where the general safety requires a ship to go into port to refit, by reason of some peril, the necessary expense of going into port, of preparing for the refitting the ship by unloading, warehousing, reloading, and the charges of the crew during the necessary detention, are general average. But the costs of the repairs, so far as they accrue to the ship alone as a benefit, and would have been necessary in that port, on account of the ship alone, are not average. Yet, if the expense of the repairs would not have been incurred but for the benefit of the cargo, and might have been deferred with safety to the ship, to a less costly port, such extra expense is general average.

It has likewise been held, that the wages and provisions of the crew, during a capture and detention for adjudication, are a proper subject for general average;¹¹⁷ while, in the case of a vessel detained by an embargo, they are not so subject and are chargeable exclusively on the freight.¹¹⁸ Pothier, and Ricard, all agree, that wages and provisions are not a subject for contribution in the case of an embargo; and yet it has been held, on the other hand, by the Court of Errors in Pennsylvania, in 1807, that they were, in such a case, the subject of general average.¹¹⁹ In respect to the wages and provisions of the crew, while the vessel was detained at an intermediate port, by fear of enemies, and waiting for convoy, they were allowed to form the subject of general average, by the courts in Holland, amidst conflicting opinions, and after very protracted and exhausting litigation.¹²⁰

We cannot but lament the uncertainty and confusion which the contradictory rules on this subject have created. There is no principle of maritime law that has been followed by more variations in practice than this perplexed doctrine of general average; and the rules of contribution in different countries, and before different tribunals, are so discordant, and many of the distinctions are so subtle, and so artificial, that it becomes extremely difficult to reduce them to the shape of a connected and orderly system. The French jurists complain, that their ancient nautical legislation left the question of contribution very much at large, and subject to arbitrary discretion, and they commend very highly the regulations of the ordinance and of the code as just and equitable, and marked with certainty and precision.¹²¹

If part of the cargo be voluntarily delivered up to a pirate or an enemy, by way of ransom or contribution, and to induce them to spare the vessel and residue of the goods, the property saved must contribute to the loss, as being the price of safety to the rest. The expense, also, of unlacing the goods, to repair damages to the ship, must be sustained by general contribution; for all the parties concerned are interested in the measures requisite for the prosecution of the voyage. If the masts, cables, and other equipments of the vessel be cut away, to save her in a case of extremity, their value must be mace good by contribution.¹²² It was attempted, in the case of Covington v. Rogers,¹²³ to extend the application of the general rule to the case of the loss of a mast, in carrying an unusual press of sail to escape from an enemy, and to make that the subject of general average; but the court considered that to be no more than a common sea risk.¹²⁴

If the ship be voluntarily stranded, to escape danger from tempests, or the chase of an enemy, the damages resulting from that act are to be borne as general average, if the ship be afterwards recovered, and perform her voyage.¹²⁵ But if the ship be wholly lost or destroyed, by the act of running her ashore, it has been a question much discussed, and different opinions entertained, whether the cargo saved was bound to contribute to bear the loss of the ship. In Bradhurst v. The Columbian Insurance Company,¹²⁶ the ship, in a case of extremity, was voluntarily run ashore and lost, but the cargo was saved; and it was held, that no contribution was to be levied on the cargo for the loss of the ship. The marine ordinances, and writers on maritime law were consulted, and the conclusion drawn from them was, that the cargo never contributed for the ship, if she was lost by means of the act of running her ashore. But in two subsequent cases, where the ship was lost under like circumstances, it was decided, on a like review of the European law, that the loss was to be repaired by a general average.¹²⁷ The question, therefore, in which the foreign and domestic authorities so materially vary, remains yet to be definitely settled.

A temporary safety is all that is requisite to entitle the owners of the property sacrificed to contribution; and if the ship survives the disaster, and be afterwards lost by another, still the goods saved in the second disaster, must be contributory to the original loss, for without that loss they would have been totally destroyed.¹²⁸ Goods shipped on deck contribute if saved, but if lost by jettison, they are not entitled to the benefit of general average; for they, by their situation, increase the difficulty of the navigation, and are peculiarly exposed to peril.

It becomes an important inquiry on this subject, what goods are to contribute, and in what proportions, to a loss voluntarily incurred for the common safety.¹²⁹ The general doctrine is, that all the merchandise, of whatever kind or weight, or to whomsoever belonging, contributes. The contribution is made, not on account of incumbrance to the ship, but of safety obtained, and, therefore, bullion and jewels put on board as merchandise, contribute according to their full value. By the Rhodian law,¹³⁰ it was deemed just that all should contribute to whom the jettison had been an advantage, and the amount was to be apportioned according to the value of the goods. It extended to the effects and clothes of every person, and even to the ring on the finger, but not to the provisions on board, nor to the persons of freemen, whose lives were of too much dignity and worth to be susceptible of valuation.

The modern marine codes do not generally go to the extent of the Rhodian law, and they vary greatly on the subject. By the English law, the wearing apparel, jewels, and other things belonging to the persons of passengers or crew, and taken on board for private use, and not as merchandise for transportation, do not now contribute in a case of general average.¹³¹ The common rule, according to Magens,¹³² is, that what articles pay freight must contribute, and what pay no freight pay no average; and that articles contribute according to their value, and not according to weight. By the French ordinance of the marine, as well as by the new commercial code, provisions and the clothes of the ship’s company do not contribute; but usage goes further, and does not subject to the charge of general average either clothes, jewels, rings or baggage of the passengers, for they are considered as accessory to the person. Emerigon, who has, according to his usual manner, collected and exhausted all the learning appertaining to the subject, inclines to think with Pothier, that by strict law and by equity, the clothes and jewels of passengers ought to contribute. But Boulay Paty, in his commentaries on the new code, and in which he draws most liberally on the resources of Emerigon, thinks they ought to be exempted, and that the existing French usage is proper.¹³³

Instruments of defense and provisions do not contribute, because they are necessary to all; and yet if they are sacrificed for the common safety, they are to be paid for by contribution; nor do the wages of seamen contribute to the general average, except in the single instance of the ransom of the ship. They are exempted lest the apprehension of personal loss should restrain them from making the requisite sacrifice, and the hardships and perils they endure well entitle them to an exemption from further distress.¹³⁴ If part of the cargo be sold for the necessities of the ship, it is in the nature of a compulsive loan for the benefit of all concerned, and bears a resemblance to the case of jettison; and if the ship be afterwards lost, the goods saved must contribute towards the loss of the goods sold, equally as if they had been thrown overboard to lighten the vessel. In such a case, a portion of the cargo, according to Lord Stowell, is abraded for the general benefit.¹³⁵

Without entering minutely into the doctrine of adjusting and settling a general average,¹³⁶ it will be sufficient to observe, that, as a general rule, the goods sacrificed, as well as the goods saved, are to be valued at the clear net price they would have yielded, after deducting freight, at the port of discharge; and this rule is founded on a plain principle of equity.¹³⁷ The person whose loss has procured the safe arrival of the ship and cargo, should be placed on equal ground with those persons whose goods had safely arrived, and that can only be by considering his goods to have also arrived. The owners of the ship contribute according to her value at the end of the voyage, and according to the net amount of the freight and earnings. The value of the vessel lost is estimated according to her value at the port of departure, making a reasonable allowance for wear or tear on the voyage up to the time of the disaster; and the practice in this country, at least it is the practice in Boston,¹³⁸ to ascertain the contributory value of the freight by deducting one third of the gross amount. As to losses of the equipment of the ship, such as masts, cables, and sails, it is usual to deduct one third from the price of the new articles; for, being new, they will be of greater value than the articles lost.¹³⁹

The subject of the adjustment of a general average has been very much discussed in some of the modern cases. In Leavenworth v. Delafield,¹⁴⁰ which was the case of a vessel captured and carried in for adjudication, and where the wages and -provisions of the crew went into general average, a rule of adjustment somewhat peculiar to the case was adopted; for no disaster had happened to injure the vessel or cargo. In Bell v. Smith,¹⁴¹ the vessel had been so deteriorated by the perils of the sea, as to render a sale of her abroad necessary; and the general average was calculated on the price she sold for, and not on four fifths of her original value, as in the preceding case of capture. The subject underwent a very full discussion in Strong v. The New York Firemen Insurance Company,¹⁴² and it was there declared to be the duty of the master, in cases proper for a general average, to cause an adjustment to be made upon his arrival at the port of destination, and that he had a lien upon the cargo to enforce the payment of the contribution. This was shown to be the maritime law of Europe. When the general average was thus fairly settled in the foreign port, according to the usage and law of the port, it was binding, though settled differently from what it would have been in the tome port. The very same principle was largely examined and recognized in Simonds v. White.¹⁴³ If, however, it was not a proper case for a general average, and was a partial loss only, then these cases do not apply, and a foreign adjustment, founded in mistake, and assuming a case for general average, when none existed, is not binding.¹⁴⁴ With respect to the payment of the average, each individual is undoubtedly entitled to sue for the amount of his share when adjusted; but the English practice usually is, in the case of a general ship, where there are many consignees, for the master, before he delivers the goods, to take a bond from the different merchants for payment of their portions of the average when the same shall be adjusted.¹⁴⁵

(9.) Of salvage.

Salvage is the compensation allowed to persons by whose assistance a shin or its cargo has been saved in whole or in part from impending danger, or recovered from actual loss; and it often forms a material ingredient in the discussions and adjustment which take place when a voyage has been disastrous. Thee allowance of salvage depends frequently on positive statute regulations fixing the rate, and the foreign ordinances contain precise enactments on this head. The regulation of salvage, by the statute law of the United States, is confined to cases of recapture. In the case of shipwrecks, or derelicts at sea, and rescue, and most other cases, the law has not fixed any certain rate of salvage, and it is left to the discretion of the Court of Admiralty, under all the circumstances.¹⁴⁶ The amount to be allowed varies according to the labor and peril incurred by the salvors, the merit of their conduct, the value of the ship and cargo, and the degree of danger from which they were rescued.

The courts are liberal in the allowance of salvage in meritorious cases, as a reward for the service, and as an incentive to effort; and the allowance fluctuates between one half, one third, and one fourth, of the gross rat net proceeds of the property saved. In a case of derelict, Sir William Scott observed, that in no instance except where the crown alone was concerned, and where no claim had been given for a private owner, had more than one half of the net proceeds of the property been decreed by way of salvage; and in that case he directed the salvage to be apportioned among the crews of the two vessels which were the salvors according to the numbers of the crews.¹⁴⁷ The same observations were made by the court in Mason v. Ship Blaireau,¹⁴⁸ and no instance was found in which salvors were allowed beyond a moiety of the value. The court, in that case, reduced the allowance made in the court below to the salvors, from three fifths of the net proceeds of the ship and cargo, to two fifths thereof.

Though, in general, a passenger, seaman, or pilot, is not entitled to compensation in the way of salvage, for the ordinary assistance he may have afforded a vessel in distress, as it is no more than a duty; yet, a passenger, for extraordinary exertions beyond the line of his duty, has been deemed entitled to a liberal compensation as salvage.¹⁴⁹ So, in a case of extraordinary peril, it is admitted, that great exertions and personal hazard may exalt a pilotage service into a salvage service.¹⁵⁰ And if the ship has been abandoned so as to discharge a seaman from his contract, yet if he subsequently contributes to the preservation of the vessel, he will be entitled to salvage.¹⁵¹

The subject of salvage was largely discussed in our courts in a case of recapture.¹⁵² The District Court of New York allowed as savage one half of the value of the ship. The Circuit Court reversed the decree, and denied all salvage. The Supreme Court of the United States corrected both decrees, and allowed one sixth part of the net value, after deducting the charges. The court, in that case, admitted the rule to be, that a neutral vessel, captured by a belligerent, was entitled to be discharged without paying salvage, on the ground that no beneficial service was thereby rendered, as the neutral, acting properly, would, of course, be discharged by the courts of the sovereign of the captor; and they admitted, likewise, the exception to the rule, when belligerent captors and courts were notorious for their unprincipled rapacity. This rule, and the exception, have been frequently declared in the English admiralty.¹⁵³ The rule of British jurisprudence in respect to recaptured property, and salvage thereon, is to give the benefit of the rule applicable to recaptured property of British subjects to allies, until it appears that they act upon a less liberal principle, and then the allies are treated according to their own measure of justice.¹⁵⁴ The same rule has been adopted by statute in this country,¹⁵⁵ and it is founded on the immovable basis of reciprocal justice.

Though the contract of seamen be not dissolved by shipwreck, and it be their duty to remain and labor to preserve the wreck and fragments of the ship and cargo, yet they may be entitled to recompense, by way of salvage, for their peculiar services. The wages recovered in the case of shipwreck are in the nature of salvage, and form a lien on the property saved. The character of seamen creates no incapacity to assume that of salvors; and were it otherwise, it would be mischievous to the interests of commerce, inconsistent with natural equity, and would be tempting the unfortunate mariner to obtain by plunder and embezzlement in a common calamity, what he ought to possess upon principles of justice. The allowance of salvage in such cases is, and ought to be liberal; not less, in any case, than the wages would have amounted to; and even an additional recompense should be made in cases of extraordinary danger and distinguished gallantry, where the service was much enhanced, by the preservation of life, and the great value of the property at stake.¹⁵⁶

(10.) Of the dissolution of the contract of affreightment.

The contract of affreightment may be dissolved without execution, not only by the act of the parties, but in many cases by the act of the law.

If the voyage becomes unlawful, or impossible to be performed, or if it be broken up, either before or after it has actually commenced, by war or interdiction of commerce with the place of destination, the contract is dissolved.¹⁵⁷ And if the voyage be broken up by capture on the passage, so as to cause a complete defeasance of the undertaking, the contract is dissolved, notwithstanding a subsequent recapture.¹⁵⁸ So, if there be a blockade of the port of destination, by means of which a delivery of the cargo becomes impossible, and the vessel returns to the port of departure, the voyage is defeated and the contract dissolved.¹⁵⁹

But a temporary impediment of the voyage does not work a dissolution of the charter party, and an embargo has been held to be such a temporary restraint, even though it be indefinite as to time.¹⁶⁰ The same construction is given to the legal operation of a hostile blockade, or investment of the port of departure, upon the contract. It merely suspends the performance of it, and the voyage must be broken up, or the completion of it become unlawful, before the contract will be dissolved.¹⁶¹ If the cargo be not of a perishable nature, and can endure the delay, then the general principle applies, that nothing but occurrences which prevent absolutely the execution of the contract, will discharge it. The parties must wait until those, which merely retard its execution, are removed. The commercial code of France,¹⁶² declares, that, if before the vessel sails on her voyage, an interdiction of commerce with the country to which she is bound takes place, the charter party is dissolved; though it would be otherwise if a superior force hinders, for a time, the departure of the ship, or if she were detained by superior force during the voyage.

In parting with the subject of this, and of the two preceding lectures, I readily acknowledge the free use that has been made of Lord Tenterden’s excellent treatise on maritime law. It has been the basis of the compilation, and it was impossible to have found any other model so perfect, or to have made any material improvement upon it. It is equally distinguished for practical good sense, and for extensive and accurate learning, remarkably compressed, and appropriately applied.¹⁶³ Another work from which I have derived much assistance, is Mr. Holt’s view of the English navigation laws, and of maritime contracts. He has followed in the track of Lord Tenterden, and with great credit to himself. His work is wholly free from the encumbrance of foreign learning on the same subject. This omission gives the appearance of a dry practical character to the work, but the reading of it becomes quite interesting by reason of the clearness of its analysis, the precision of its principles, the perspicuity of the style, and the manly good sense of the author. The introductory part is particularly excellent, for it contains a very condensed, yet comprehensive, and perfectly accurate view, of all the principles in the work, entirely disembarrassed from adjudged cases.

No one can observe, at first, without surprise, how extensively and closely subsequent writers follow in the footsteps of those who preceded them; but when we come to study the same topics, handled so often by master spirits, we perceive that this must necessarily be the case, in ethics and in law, where discoveries are not to be made, as in the physical sciences. The entire region of ethical and municipal jurisprudence has been amply explored, and with more than a Denham or a Parry’s success.¹⁶⁴ Panaetius was the original author of the substance of Cicero’s Offices, as Cicero himself acknowledges; and that consummate work, in its turn, became the foundation of all that Grotius, Pufendorf, Cumberland. and a thousand other writers, have laid down as the deductions of right reason, concerning the moral duties of mankind. No person would think of compiling a code of ethics without at least visiting the shades of Tusculum, and still less would he think of erecting a temple to jurisprudence, without adorning it with materials drawn from the splendid monuments of Justinian, or the castellated remains of feudal grandeur. The literature of the present day, “rich with the spoils of time,” instructs by the aid of the accumulated wisdom of ages.