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them precisely in point) which are to be found in the books on the subject of the increase or decrease (during the voyage) of the article to be carried. I agree that the bulk or weight, as appearing at the port of destination, may be prima facie the criterion of the freight to be paid; but when it is proved that that test is fallacious and untrue, and that the real quantity shipped was a different and smaller quantity (as the jury in this case have actually found), then I think that the freight ought to be calculated upon the true quantity shipped; and, in my judgment, the captain's ignorance of the true quantity (as) expressed in the bill of lading) cannot entitle him to charge freight according to a false estimate; whether the actual quan- ' tity be stated and admitted in the bill of lading, or the contents are stated to be unknown, appears to me to make no difference as to the principle which ought to govern our decision. But it does appear to me to be contrary to the principles of natural justice that the ship-owner should acquire a right to demand more freight, and the owner of the goods become liable to pay more freight, in consequence of a circumstance which is. an injury to the goods, and which has occurred to them while they were in the care, custody and keeping of the ship-owner or those who represent him, over the causes of which the owner of the goods has no control, but some of the possible causes of which are considerably or entirely under the control of the captain and the crew." And the rule thus established has since been applied to cases in which cargoes of cotton in' tightly compressed bales have expanded upon the voyage or upon being taken from the ship's hold.60 And the same rule has been applied when the freight was to be computed according to the weight of the goods.61

Sec. 813. (§ 454.) Must be calculated on amount carried and delivered. The rule, therefore, that freight must be cal

60. Shand v. Grant, 15 Com. B. (N. S.) 324; Buckle v. Knoop, 2 L. R. Exch. 125, 333; Coulthurst v. Sweet, L. R. 1 C. P. 649. 61. Nine Thousand, etc., Dry

Hides, 6 Ben. 199; Abbott on Ship. 430. Or, according to the number of bushels. Allen v. Bates, 1 Hilt. 221.

culated upon the quantity of goods shipped, carried and delivered, or, as expressed by Alderson, B., in the same case, "on that amount only which is put on board, carried throughout the whole voyage, and delivered at the end to the merchant," and that all these conditions must concur in order to entitle him to his freight, is one of importance to the carrier. One consequence of it is that he can never be the gainer by an increase of bulk or weight during the voyage, but may be the loser by its decrease; and in the carriage of those classes of goods which are liable to waste from leakage, shrinkage, evaporation and the like, and of live animals, which may die upon the journey or voyage, he should provide against loss of freight from such decrease by his contract; otherwise he will be entitled to claim only for what is delivered, no matter how much less in weight, quantity or number than when shipped.

Sec. 814. (§ 455.) Freight pro rata itineris.-The condition that the carrier, in order to entitle himself to compensation for the carriage of the goods, must deliver them to the consignee at the place of original destination, is not, however, absolute under all circumstances. It has already been stated1 that the consignee or owner may stop and reclaim them at any point upon their journey, but that if he do so before they reach their destination, when the carrier is able and willing to go forward with them and is actually engaged in their transportation, he must pay to the carrier full freight, as though he had completed their carriage as at first directed. It has also been shown that if the carrier, in the course of the transportation, meet with disaster which disables him from the further prosecution of his journey, or if from any cause it becomes impossible for him to proceed, or if he is obliged to submit to a long delay, it becomes his duty to forward the goods by another carrier if it can be done, and that if by such transshipment they reach their destination in a reasonable time he will be entitled to claim his freight for the whole distance. Under such circumstances, however, it is of course competent 1. Ante, §§ 660, 801.

for the parties to enter into a new agreement, if the owner is willing to accept a redelivery to himself of the goods and to release the carrier from further responsibility, and the carrier agrees to surrender them. Such a course may, under the existing difficulties, frequently be to the interest of both parties, and is often adopted. The owner may find a market for his goods at the place of disaster or necessity, and he may find it more advantageous to dispose of them there than to incur the expense and risk of their further transportation, or he may wish to change their destination, or may prefer, in order to save expense or to hasten the carriage, to take upon himself the responsibility of their reshipment. If the owner thus voluntarily takes back the goods after a part of the service which the carrier undertook has been performed, the original contract of shipment is considered as abandoned by the agreement of the parties, and a new one is implied on the part of the shipper, that he will pay the carrier a proportionate part of the freight, or, as it is usually termed, pro rata itineris.2

Sec. 815. (456.) Same subject-Acceptance must have been voluntary. In such cases the first question to be determined is whether the circumstances of the acceptance by the owner of the goods have amounted to a waiver of their further carriage, and a voluntary consent to receive them at the place to which they have been carried. It was formerly held that, even when the carrier refused or was unable to proceed with the transportation, after having been overtaken by disaster, or failed to tranship the goods when he had it in his power to do so, if the owner, from the necessity of the case and to prevent their sacrifice, took them in charge and had them forwarded by means provided by himself, or if the carrier sold the goods at the place of necessity even when he had no authority to do so, and paid the proceeds over to the shipper,

waived.

2. Pro rata freight is never pay- formed nor its performance able, however, on property deInsurance Co. v. Southstroyed during the voyage, since the contract to deliver at destination in such case is neither per

ern Pac. Co., 72 Fed. 285, 18 C. C. A. 561, 38 U. S. App. 243, affirming 55 Fed. 82.

who voluntarily received them, he was still entitled to pro rata freight, and the acceptance was regarded as voluntary where it was not enforced by threats or physical compulsion. But the now well-settled rule is, that the mere acceptance, either of the goods or of their proceeds, can give no claim to pro rata freight if introduced, not by a desire to obtain possession of them at the place to which they have been carried in preference to the original place of destination, but by the circumstances of the case, and the necessity for receiving them there or abandoning them altogether; and that, in order to render the act of the owner in receiving the goods at the point where the voyage is broken up really voluntary, there must be some choice offered him as to whether he will receive them there or at the original point of destination, and that the question of volition cannot be confined to the mere fact of acceptance, but must be considered in reference to all the circumstances under which it takes place.5

Sec. 816. (§ 457.) Same subject-How question determined. Whether the acceptance of the goods was voluntary, in the absence of an express agreement, must be determined by the existing facts and the conduct of the parties. Where the carrier refuses to repair his ship after the disaster, and to send on the goods or to procure another vessel for the pur

3. Luke v. Lyde, 2 Burr. 882; U. S. Ins. Co. v. Lenox, 1 Johns. Cas. 377; Williams v. Smith 2 Caines, 13; Robinson v. The Marine Ins. Co., 2 Johns. 323; Teasdale v. The Ins. Co., 2 Brev. 190; Escopiniche v. Stewart, 2 Conn.

391.

4. Braithwaite v. Power, 1 N. D. 455, 48 N. W. Rep. 354; Transportation Co. v. Hoyt, 69 N. Y. 230; McGaw v. Insurance Co., 23 Pick. 405.

5. Welch v. Hicks, 6 Cow. 504; Hurtin v. The Union Ins. Co., 1 Wash. C. C. R. 530; Armroyd v.

The Ins. Co., 3 Bin. 437; Callen-
der v. The Ins. Co., 5 id. 525;
Caze v. The Baltimore Ins. Co., 7
Cranch, 358; The Columbian Ins.
Co. v. Catlett, 12 Wheat. 383;
Richardson v. Young, 38 Penn. St.
169; Hunter v. Prinsep, 10 East,
378; Liddard v. Lopes, id. 526;
Cook v. Jennings, 7 T. R. 381; The
Teutonia, L. R. 3 Adm. 394; The
Propeller Mohawk, 8 Wall. 153;
Merchants', etc., Ins. Co. v. But-
ler, 20 Md. 41; Bork v. Norton, 2
McL. 422; Crawford v. Williams, 1
Sneed, 205; Rossiter v. Chester, 1
Doug. (Mich.) 154.

pose, no choice is given to the owner, and an acceptance by him will not be treated as voluntary in the absence of an express agreement. But if it be shown that the carrier was able and willing to send forward the goods, or that he proposed to prosecute his voyage to destination, after the necessary delay for repairs, the acceptance may be presumed to have been the voluntary act of the owner; and if it be further shown that it was in any way to his advantage to accept them at the intermediate port or place of disaster, the presumption would be still stronger that his acceptance was from choice; and in every case it must be a question of fact, to be determined under all the circumstances, where there is no stipulation upon the subject. As said by Tilghman, C., J., in Gray v. Waln, freight pro rata is due "when the consent of the merchant, either by words or by actions, has been expressly given, or may be fairly inferred, to accept his goods at an intermediate port." If the owner sell the goods at the place of detention, when the means to forward them to destination could have been procured, it will be an almost conclusive proof of an election to accept them there; and if it be further shown that the market for the goods was higher there than at the place of destination, the presumption would be still more conclusive. The goods may also be accepted by an agent or supercargo on behalf of the owner, or by the underwriters of a policy of insurance, and their acts in dealing with the goods under such circumstances will have the same effect and be liable to the same construction as if done by the owner in person. But before such an inference of the voluntary acceptance of the goods by the owner will be made, in order to charge him with an apportionment of the freight, it must be shown that the carrier was willing and able, and that he proposed to send them forward, or to complete the carriage himself at the expiration of the necessary delay. For if he decline or refuse to do one or the other, nothing short of an express agreement will entitle him to any part of the freight.

6. 2 S. & R. 229.

7. Smyth v. Wright, 15 Barb.

51; The Prop. Mohawk, 8 Wall. 153.

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