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DCCLVI. The damages which may happen to the freighter by the voluntary delay on the part of the captain in commencing his voyage, after it became his duty to set sail with his vessel, according to the rules which are herein prescribed, shall be charged upon the carrier of the cargo, from whatever cause the delay shall proceed, especially when the carrier shall have been judicially required to sail the vessel, or put to sea, at the time which he may have bound himself to do so.
Neither in case the ship shall have been freighted entire, nor in case of a partial affreightment, when three-fifths of the cargo, corresponding to the tonnage of the vessel, has been received, can the carrier employ another vessel from that designated in the contract of affreightment, unless all the shippers do consent to it; and if he should do so without this requisite, he makes himself responsible for all the damages which may happen to the cargo during the voyage.
When any one shall have freighted a ship entire, he can underlet the same to another person to load in whole or in part, without any impedi. ment from the captain.
If the affreightment has been made for a fixed amount, the freighter can underlet the vessel on his own account at the prices which he may find most advantageous, his responsibility continuing complete to the carrier, no alteration being caused in the conditions by which the affreightment has been made.
The freighter or merchant who shall not furnish the whole of the cargo which he has agreed to embark, shall pay the freight of that which he omits to load, especially when the captain shall not have taken other cargo to complete what shall amount to the tonnage of the vessel.
A freighter having introduced into a vessel more cargo than that which was mentioned and contracted for, he shall pay the additional freight which corresponds to the excess, according to his contract ; and if the captain cannot place this increase of cargo under the hatches, and in good stow. age, without the breach of other contracts which he may have made, he shall discharge it at the expense of the owner.
The captain can put on shore before he shall sail from the port, the merchandise introduced into his ship clandestinely and without his con. sent, or he may carry it with due care, exacting freight at the highest price which he may have contracted for carrying on such voyage.
Every damage from confiscation, embargo, or detention, which may hap. pen to the vessel by reason of the freighter having introduced into the ves. sel effects different from those which he put on his manifest for the carrier, shall fall upon the shipper himself, his cargo and other property.
If the damages should have extended to the cargo of the other co-freighters, (co.fletadors,) it shall be equally for the account of the freighter who committed such deception, to indemnify entirely the co-freighters.
DCCLXIII. The carrier agreeing knowingly to receive on board of his vessel mer.
chandise of illicit commerce, he is made responsible, conjointly with its owner, for the whole of the damages which may have arisen to the other shippers, and he cannot demand from any one any indemnification for the damages which may result to the vessel, even when he may have so agreed. DCCLXIV. If the freighter should abandon the affreightment without having loaded anything in the vessel, he shall pay one-half of the freight agreed upon, and the carrier shall be freed and acquitted from all the obligations which he contracted in the affreightment. idcCLXV. In affreightments of a general cargo, each one of the shippers may dis. charge their merchandise loaded on board, paying one-half of the freight, and the expenses of overhauling and replacing the cargo, and whatever damages may arise on account of the change, to the other shippers. The shippers shall have power to oppose the discharge, taking account of the cargo from the effects which any one may wish to discharge, and paying the value of the price of the invoice of the consignment. DCCLXVI. A vessel being hired to receive her cargo in another port, the captain shall present himself to the consignee designated in his contract, and if he shall not furnish the cargo, the captain shall give notice to the freighter or merchant, whose instructions he shall wait for during the running of the lay days contracted for, or those which shall be customary in that port. Provided that no express agreement has been made about the delay, the captain receiving no answer in the regular time, he shall use diligence to obtain a freight for his vessel, and if he shall not find any until after the lay days, and days of demurrage, have expired, he shall formally make out his protest of the affair, and shall return to the port where he made his contract of affreightment. The merchant shall pay him full freight, discounting what the merchandise may have yielded which had been laden on board on account of a third person. DCCLXVII. The authority of the preceding article is applicable to a vessel which may be freighted for an outward and homeward voyage, and which may not have been supplied with a return cargo. DCCLXVIII. If, before a vessel shall make sail, a declaration of war between the nation to whose flag she belongs, or to any other maritime power, or commercial relations with the country designated in the contract of affreightment for the voyage of the ship, by this same act the contract of affreightment shall be rescinded, and all actions to which it may have given rise shall be extinguished; the vessel being loaded, she shall be discharged at the cost of the owner of the goods, or freighter, and he shall be liable to stand security for all the expenses and wages caused for the equipage of the vessel since the time when he commenced loading. DCCLXIX. When, by shutting up the port, or by any other accident of insuperable force, the sailing of the vessel is interrupted, the contract of affreightment shall subsist without either party having the right to claim damages from the other; and the expenses of the maintenance and the wages of the crew, shall be considered common average. VOL. XV.-NO, WI. 36
DCCLXX. In the case mentioned in the antecedent article, it shall be at the option of the shipper to discharge and undertake at his own time to again put on board his own merchandise, he paying for the extra days if the reloading shall be delayed after the cause which interrupted the voyage shall have ceased. DCCLXXI. If, after the vessel has sailed to sea, she shall put back to the port from whence she sailed, by reason of bad weather or danger from pirates or from enemies, and the shippers shall agree for her total discharge, the carrier, or master of the ship, cannot refuse, the freight being paid for the entire outgoing voyage. If the affreightment shall be adjusted by the month, there shall be paid the amount of one month's full freight, the voyage being undertaken to a port in the same sea, and two months' freight if undertaken to a foreign sea. If from one port to another port of the peninsula, (meaning Spain,) and the islands adjacent, there shall never be paid more than one month’s freight for the outward voyage. DCCLXXII. A declaration of war occurring on the voyage, a closing of the port, or an interdiction of commercial relations, the captain shall pursue the instructions which beforehand he shall have received from the freighter or merchant; and whether he shall arrive at the port which for this case shall have been designated, or whether he returns to that port from which he sailed, he shall receive only the freight of the outgoing voyage, even when the ship shall have been freighted for the outgoing and return voyage. DCCLXXIII. The captain wanting (fallando) instructions from the merchant, and a declaration of war supervening, he shall pursue his voyage to the port of his destination, provided that it shall not belong to the same power with which hostilities have broken out, in which case he shall proceed to a neutral port, and one secure, which he may find to be the nearest, and shall there await the orders of the shippers; the expenses and salaries incurred during the detention, shall be estimated as common averages. DCCLXXIV. The discharge of the cargo having been made in the port where he shall have arrived, he shall be entitled to receive the freight for the entire outgoing voyage, if this should happen to be more than one-half of the distance between the port of departure and the port of consignation; should the distance be less, he shall be entitled to receive only one-half outgoing freight. DCCLXXV. The expenses which shall be occasioned in the discharge of the cargo, and in undertaking to reload the merchandises in any port of refuge or dis. tress, shall be on account of the shippers when it shall be done by their request, or with the authority of the tribunal of commerce which may have deemed such operation to be expedient, to avoid damages and averages in the preservation of the effects on board. IocCLXXVI. An indemnification shall not be due to the freighter when the vessel shall have put into port for repairs urgent and necessary in her hull, or in her apparel and outfits; and if, in this case, the shippers shall prefer to
discharge their effects, they shall pay the entire freight the same as if the vessel had arrived at her port of destination, the delay not exceeding thirty days; and when it shall run beyond this time, the shippers shall only pay freight proportioned to the distance which the vessel may have transported the cargo. DCCLXXVII. When the vessel shall become unseaworthy, the captain shall be obliged to hire another at his own cost, to receive the cargo and to carry it to its place of destination, accompanying it until he shall have made its delivery. If absolutely he cannot find, in the ports which shall be within thirty leagues of distance, another vessel for transhipping the cargo into, he shall deposit the cargo on account of the proprietors, in the port in which he shall arrive in distress, regulating the freight of the ship which has become unseaworthy, in the calculation of the distance which he has carried the cargo, and he cannot, in such case, demand any indemnification. DCCLXXVIII. If through malice or indolence, the captain shall fail to procure a vessel which may carry the cargo in the case which is mentioned in the preceding article, the shippers may procure one and load it at the expense of the former carrier, (anterior:fletante,) after having served two judicial citations upon the captain, and he cannot refuse the ratification of the contract made by the shippers, which he shall carry into effect on his own account and upon his own responsibility. DCCLXXIX. The shippers making justification that the vessel which became unseaworthy was not in a condition to navigate when she received the cargo, no freight money can be demanded of them, and the carrier shall respond for all damages and losses. A justification shall be admissible and effectual, notwithstanding a visit and survey of the ship shall have been made, certifying to the ability of the vessel to have undertaken the voyage. DCCLXXX. If, by blockade, or other ouse which shall interrupt the relations of commerce, the ship cannot reach the port of her destination, and the instructions of the shipper have not provided for such a case, the captain shall proceed to the nearest suitable port where he can find a person authorized to receive the cargo, and he shall make a delivery there ; and in defect of such a person, he shall await the instructions of the shipper, or rather of the consignee to whom he was consigned, and he shall act according to such instructions, assuming the expenses which this delay may occasion as common average, and receiving the freight for the entire outgoing voyage. DCCLXXXI. A sufficient time transpiring in the opinion of the tribunal of commerce, or of a judicial magistrate in the place where he shall put in with his vessel, so that the shipper or consignee could name a person in the place who should receive the cargo, a deposit of the cargo shall be decreed by the same tribunal, the freight being paid with a product of a portion of the same cargo, which shall be sold in sufficient quantity to cover the freight. DCCLXXXII. A vessel being freighted by the month or by the day, the freight shall commence on the day in which the cargo shall be ready to be placed on board, unless there shall have been a stipulation expressed to the contrary. dcci,xxxiii. In an affreightment made for a determinate time, the freight shall begin to run from the same day, saving always the conditions to which the parties may have agreed. DCCLXxxiv. When the freights are adjusted by weight, the payments shall be made by gross weight including the envelope, the casks, or every species of vessel in which the cargo shall be contained, if another arrangement have not been expressly agreed upon. loccluxxxv. The merchandises which the captain may have sold in case of urgency, to meet the expenses of careening, apparelling, and other indispensable wants of the vessel, shall pay freight. DCCLXXXVI. The freight of merchandises thrown into the sea to save the vessel from danger, shall be considered as common average, its value being abandoned to the carrier. DCCLXXXVII. No freight shall be due for merchandises which shall have been destroyed by shipwreck or stranding, nor from those which have been taken as prizes from pirates, or from enemies. If any freight shall have been received in advance, the same shall be returned, unless the parties contracting shall have stipulated to the contrary. DCCLXXXVIII. The vessel or cargo being ransomed, or saved from the disasters of ship. wreck, shall pay freight which corresponds to the distance through which ---, essel has carried the cargo; and if, being repaired, the vessel shall have carried the cargo to the port of destination, entire freight shall be earned, without prejudice to that which corresponds to the decision concerning averages. DCCLXXXIx. The merchandises which shall suffer deterioration or diminution, by for. tuitous accident, or by the proper vice of the thing, or by bad quality and condition of the envelopes, shall pay full freight, according to the agreement in the contract of affreightment. DCCXC. The carrier shall not be obliged to receive in payment of the freights, the effects of the cargo, be they averaged or not ; but always the shippers can abandon the goods for the freight of liquids, whose vessels shall have lost more than one-half of their contents. DCCXCI. The merchandises loaded in a vessel, having received a natural augmentation in their weight or measurement, freight shall be paid by the owner corresponding to the increase. DCCXCII. The freighter who voluntarily, and not in the cases of insuperable force, of which mention has been made in article 771, may discharge his goods before their arrival at the port of destination, shall pay the entire freight and the expenses incurred by putting into port, which was done at his instance, for the discharge of the cargo. DCCXCIII. Freight is due from the moment in which the cargo has been discharged and placed under the control of the consignee of the merchandises.