We have seen that although the ship has no lien on the cargo for payment of freight, until that be earned, the ship has a lien on the cargo once shipped on board, grounded on the right of the ship to carry it to its destination and thus earn the freight. Nor is this right lost by circumstances which would cause great delay, or diminution of value; (2) but if the lien of the ship upon the goods is only for the purpose of earning freight, the shipper may at any time reclaim his goods, by paying the full freight which would be earned upon them. (a) The authorities are very strong and decisive that the shipowner need not deliver the goods at any intermediate place, although he is there with his ship damaged, and the cargo damaged, and long-continued and extensive repairs are required for either or both. Because he may remain there, and make the repair, and then complete his voyage, and earn all his freight. (b)1

(x) Alston v. Herring, 11 Exch. 822, 36 Eng. L. & Eg. 475.

(y) Brass v. Maitland, 6 Ellis & B. 470, 36 Eng. L. & Eq. 221.

(yy) Levois v. Gale, 17 La. An. 302.

(yz) Van Buskirk v. Roberts, 31 N. Y. 660 x) Tindal v. Taylor, 4 Ellis & B. 219, 28 Eng. L. & Eq. 210; Clenson v. Davidson, 5 Binn. 392; M'Gaw v. Ocean Ins.

Co. 23 Pick. 406; Lord v. Neptune Ins. Co. 10 Gray, 109; Small v. Moates, 9 Bing. 574.

(a) Palmer v. Lorillard, 16 Johns. 348, 355; Jordan v. Warren Ins. Co. 1 Story, 342, 354; M'Gaw v. Ocean Ins. Co. 23 Pick. 405; Shipton v. Thornton, 9 A. & E. 314; Gibbs v. Gray, 2 H. & N. 22, 40 Eng. L. & Eq. 531; Tindal v. Taylor, 4 Ellis & B. 219, 28 Eng. L. & Eq. 210.

(b) See cases cited in preceding note.

1 See Notara v. Henderson, L. R. 5 Q. B. 346; L. B. 7 Q. B. 225.

But he may and usually does send the cargo forward in another ship to its original destination, and thus earn full freight. (c) * And undoubtedly, to some extent, thus to transship the cargo is his duty and obligation; although that duty in this respect is not easily or distinctly defined. (d)

If he sends the goods on, and pays the expense of sending them on, he may charge the consignee with the expense of transshipment. As soon as an exigency requiring transshipment occurs, it gives the master authority to act as agent of all parties interested, whether owners, or freighters, or insurers; and makes it his duty to do the best he can for them all. And the rule is usually stated to be this: that the master must then transship if he can, and may claim his whole freight, and charge the excess of the cost of transshipment to the shipper of the goods. So that if it cost the master no more to transship them than it would to have carried them himself, the shipper pays no more than the whole freight. (e) If the master must pay for the freight onwards more than the whole freight the owners are to receive for the whole voyage, he no longer acts as their agent, because they have no interest in the transshipment, but as the agent of the shippers whose goods he forwards. (ee)

If he is able to transship and will not do so, the shipper is certainly entitled to his goods without making any payment of freight; because until the whole freight be actually earned, the master has no lien on the goods, and no right whatever to retain them, except for the purpose of earning his freight. (/) But instead of transshipping he may tender the goods at the intermediate port to the shipper. If the shipper accepts them, he must then pay the freight to that place, or pro rata itineris. (g)l But also The Brie Collenberg, 1 Black, 170; Herbert v. Hallett, 3 Johns. Cas. 93; Griswold v. N. Y. Ins. Co. 1 Johns. 205; Saltus v. Ocean Ins. Co. 14 Johns. 138; Ellis v. Willard, 5 Seld. 529; Clark v. Mass. F. & M. Ins. Co. 2 Pick. 104; Tronson v. Dent, 8 Moore, P. C. 419, 36 Eng. L. & Eq. 41.

(c) Lnke v. Lyde, 2 Burr. 882, 889 ; Rosetto v. Gurney, 11 C. B. 176, 7 Eng. L. & Eq. 461.

(d) dee cases supra, also Schieffelin v. N. Y. Ins. Co. 9 Johns. 21; Searle v. Scovell, 4 Johns. Ch. 218; Treadwell v. Union Ins. Co. 6 Cow. 270; Hugg v. Augusta Ins. & Banking Co. 7 How. 609;

Whitney v. N. Y. Firem. Ins. Co. 18 Johns. 208; Bryant v. Commonwealth Ins. Co. 6 Pick. 130.

(e) See Shipton v. Thornton, 9 A. & E. 314; Rosetto v. Gurney, 11 C. B. 176, 7 Eng. L. & Eq. 461; Gibbs v. Gray, 2 H. & N. 22, 40 Eng. L. & Eq. 531.

(ee) Lemont v. Lord, 52 Me. 365; Thwing v. Washington Ins. Co. 10 Gray, 443.

(f) Hunter v. Prinsep, 10 East, 394; Portland Bank v. Stubbs, 6 Mass. 422; Adams v. Haught, 14 Texas, 243; Welch v. Hicks, 6 Cowen, 504; Armroyd v. Union Ins. Co. 3 Binn. 437.

(g) Luke v. Lyde, 2 Burr. 882, 889;

1 See Metcalfe v. Britannia Iron Works, 1 Q. B. D. 618; 2 Q. B. D. 423.

he may refuse to accept them, for he is under no obligation to accept them until they have reached their destination. And if he thus refuses them, he leaves the master to his duties and obligations.

Between these antagonistic rights and obligations, neither the law nor mercantile usage is yet certain; and even if they were * so, it is obvious that the great variety of circum stances would present much difficulty in the application of any rules.

Perhaps the most difficult, as well as the most important of these questions, is as to what constitutes a sufficient acceptance of the goods, by the shipper, at an intermediate port. It was once held, that any acceptance imposed upon him the duty of paying freight pro rata. (h) It seems now to be the law, that the acceptance must be voluntary; that is to say, if the goods or their proceeds are thrown upon him, without his action, or if the possession of the goods be forced upon him by circumstances which constitute a strict compulsion; and leave him no alternative, he thereby incurs no obligation to pay any freight. (i)l Thus, where a vessel was captured and the goods condemned, excepting those of a certain shipper, and the master sold his goods, and claimed to deduct from the proceeds either the whole freight on those goods, or a pro rata freight, it was held that no freight was due. (j) So, where a vessel was captured but not condemned, and the supercargo acting for the best interests of all concerned, sold the goods and received their proceeds, it was held that no freight was due. (k) Nevertheless, Mr. Justice Story, in an important case, held that to be a voluntary acceptance by the owners which he still declared to be "a reluctant acquiescence forced upon them by an overruling necessity." (l)

Parsons v. Hardy, 14 Wend. 215; Rossiter v. Chester, 1 Dong. Mich. 154; Hunt v. Haskell, 34 Me. 339; Forbes v. Rice, 2 Brer. 363.

(A) Luke v. Lyde, 2 Burr. 832. See also United Ins. Co. v. Lenox, 1 Johns. Cas. 377; Williams v. Smith, 2 Caines, 13; Robinson v. Mar. Ins. Co. 2 Johns. 323.

(i) Liddard v. Lopes, 10 East, 526; Cook v. Jennings, 7 T. R. 381; Mulloy v. Backer, 5 East, 316; Vlierboom v. Chapman, 13 M. & W. 230; Case v. Balt. Ins.

Co. 7 Cranch, 858; Col. Ins. Co. v. Catlett, 12 Wheat. 388; The Nathaniel Hooper, 8 Sumner, 542.

(j) Samjpayo v. Salter, 1 Mason, 48.

(k) Hurtin v. Union Ins. Co. 1 Wash. C. C. 580. See also Mar. Ins. Co. v. United Ins. Co. 9 Johns. 186; Armroyd v. Union Ins. Co. 3 Binn. 487; Callender v. Ins. Co. of N. A. 5 Binn. 525; Gray v. Wain, 2 S. & R. 229; Caze v. Bait. Ins. Co. 7 Cranch, 858.

(l) The Nathaniel Hooper, 3 Sumner, 566.

1 See Metcalfe v. Britannia Iron Works, 1 Q. B. D. 613; 2 Q. B. D. 423.

Nor, when it is certain that pro rata freight is due, is it quite certain by what rule it should be calculated. One way would be to estimate it geographically, or so much per mile or league, of what has been done out of all the miles or leagues of the whole voyage. (m) The other way is to estimate it in a pecuniary way, by the cost of bringing the goods so far and the cost of sending *them the remainder of the distance. In this country we think this latter method prevails. (n)

We have considered the rights and duties of ships as common carriers in the chapter on Bailments.