The contract by which an owner carries the goods of others, is called a contract of affreightment. The law of freight applies where the owners of the ship are one party, and the owners of the cargo, or of a part of it, are another party. And the fundamental principle of the law-merchant in relation to this contract, is, that the ship and the cargo have reciprocal rights against each other, and liens each against the other, to enforce these rights. The meaning and effect of this rule is, that the ship-owner, by receiving the goods on board, and with or without a written or an express promise, agrees to carry the goods in that ship, to their destined port, by the proper route, at a proper time, and in safety. The elements of this agreement are, that the ship is seaworthy in all respects and particulars, (uu) 2 including a competent and sufficient master and crew, papers, and provisions, and that proper care shall be taken of the goods, in loading them on board, in carrying them whither they should go, in there delivering them, and in navigating the ship to her destined port without needless delay or deviation. (v) And if there be a failure in any of these particulars, and the goods are thereby * injured, or their value les sened, not only is the ship-owner personally responsible, but the ship itself is subject to the lien of the freighter or shipper of the goods, and by that lien the shipper may enforce his rights, or get from the ship itself an indemnity for the injury sustained by a violation of his contract with the owner. (w)
(u) Bright v. Cowper, 1 Brownl. & 6. 21.
[uu) This rule is applied to riverworthiness in McClintock v. Lary, 23 Ark. 215.
(u) A needless deviation makes the carrier an insurer of the cargo. Davis v.
Garrett, 6 Bing. 716; Freeman v. Taylor, 8 Bing. 124; Hand v. Baynes, 4 Whart. 204 ; Crosby v. Fitch, 12 Conn. 410; Bond v. The Cora, 2 Pet. Adm. 373, 379, 2 Wash. C. C. 80; Knox v. The Ninetta, Crabbe, 534.
1 For a case on "freight," see Hubbell v. Great Western Ins. Co. 74 N. Y. 246.
2 In every contract for the carriage of merchandise by sea there is, in the absence of express provision to the contrary, an implied warranty by the ship-owner that his vessel is seaworthy. Kopitoff v. Wilson, 1 Q. B. D. 377.
And on the other hand, if the goods are so carried, not only is the owner of the goods bound to pay to the owner of the ship the freight earned by the carriage, but the ship-owner has a lien on the goods to enforce his claim for his earnings against them. (x)
Moreover, if the goods are once laden on board, the ship-owner thereby acquires a right to carry them the whole distance, and so earn his whole freight. And we should say, that the shipper cannot reclaim his goods and take them out of the ship, unless the owner consents, or unless the shipper pays to the owner his full freight. Some questions have arisen, and have been somewhat agitated in the courts, and may not be yet quite settled, as to the extent of the obligation of the shipper and the rights of the owner. We consider it certain, however, that the shipper cannot take his goods from the ship, without paying to the owner full compensation for any trouble or loss sustained by him. (y)
These rules or principles may be said to compose the whole law of freight; and while courts of common law may find some * difficulty in the enforcement of these liens, and especially the lien of the cargo against the ship, a court of admiralty finds no such difficulty; its process in rem being equal to the requirement of any case.
(w) The Gold Hunter, 1 Blatchf. & H. Adm. 300; The Grafton, Olcott, Adm. 43, 1 Blatchf. C. C. 173; The Rebecca, Ware, 183; Clark v. Barnwell, 12 How. 272; Rich v. Lambert, id. 347.
(x) Certain Logs of Mahogany, 2 Sumner, 601; Drinkwater v. The Brig Spartan, Ware, 149; Cowing v. Snow, 11 Maw. 415; Pickman v. Woods, 6 Pick. 248.- This lien is considered as waived by a delivery of the goods unconditionally. Sean v. Certain Bags of Linseed, U. S. IX C. Mass. 1858, affirmed in June, 1858, by the Circuit Court, and by the Supreme Court in Bags of Linseed, 1 Black, 108. It was also said that if the goods are put even in the warehouse of the consignee, under an agreement or understanding that this act shall not be a waiver of the lien, or if there is a local usage of the port to this effect, the goods may be held by a process in rem. See also Sears v. Wills, 4 Allen, 212; The Kimball, 3 Wallace, 37 ; The Eddy, 5 Wallace, 481; The Bird of Paradise, 5 Wallace, 545.
(y) Some cases hold, that no lien for freight exists until the vessel has broken ground. Curling v. Long, 1 B. & P. 634; Clemson v. Davidson, 5 Binn. 392, 401 ; Burgess v. Gun, 3 Harris & J. 225; Bailey v. Damon, 5 Gray, 92. If this be so, then the rule of damages would be merely the expenses actually incurred. But the better rule seems to be, that the lien for freight commences as soon as the goods are on board. Abbott on Shipping, 595; Tindal v. Taylor, 4 Ellis & B. 219, 28 Eng. L. & Eq. 210; Thompson v. Small, 1 C. B. 354; Thompson v. Trail, 2 Car. & P. 334. See also Keyser v. Harbeck, 3 Duer, 373; Bartlett v. Carnley, 6 Duer, 194.
An owner of a ship may carry his own goods principally, or partly, and fill up his ship with the goods of others. Or he may carry only the goods of others. In this latter case, he may either offer the ship to the public as a general ship, or he may let her out by a charter-party.
When he offers his ship as a general ship, he usually advertises her, stating the name of the ship and of the master, her tonnage, her general character, the time of sailing, and her proposed voyage. And although he would not be bound to exact accuracy in all these particulars, he would undoubtedly be held to make compensation to a shipper who was injured without his own fault, by the material misrepresentation of the owner in any of these statements. (z) And if the owner changes his purpose in any of these particulars, it would be his duty to vary his advertisement, or other public notice, accordingly. (a)
Goods may be carried to the port of destination, and there delivered, but in such condition that their value is greatly diminished; and the question may then arise, how this diminution of value affects the freight. The answer must depend upon the manner in which this diminution took place, or the causes which produced it. We have seen that the ship is responsible for any damage to the goods caused by the negligence or default of the master; and so it is for injury arising from the inherent nature or properties of the goods, if it could have been prevented by a proper condition of the ship or by reasonable care on the part of the master. But if the goods are injured by a peril of the sea for which the ship is not responsible, or by inherent causes not made operative by the fault of the ship or * master, then the ship is not responsible, and the claim for freight remains unaffected. Hence it is a rule of the law-merchant, that if goods injured by causes for which the ship is not responsible, remain in specie, and are delivered in speciey the whole freight is earned, whatever be the diminution or destruction of their value. (b)
(z) An advertisement that a vessel will sail with convoy is a warranty of the fact. Runquist v. Ditchell, 3 Esp. 64; Sanderson v. Busher, 4 Camp. 54, note; Magal-haens v. Busher, 4 Camp. 54; Freeman v. Baker, 5 B. & Ad. 797. As to an advertisement of time when a vessel will start, see Cranston v. Marshall, 5 Exch. 395;
Yates 0. Doff, 5 Car. & P. 369; Glaholm v. Hays, 2 Man. & G. 257; Ollive v. Booker, 1 Exch. 416; Howard v. Cobb, U. S. C. C. 19 Law Reporter, 377; Denton v. Great Northern R. Co. 5 Ellis & B. 860, 34 Eng. L. & Eq. 154; Mills v. Shult, 2 E. D. Smith, 139.
(a) Peel v. Pries, 4 Camp. 243.
If barrels or boxes arrive in which goods were, but there are no goods in them, as where wine, oil, or molasses leaks out, or sugar or salt melts and washes out, but the barrels or boxes arrive in good order, freight is due if the loss is occasioned by intrinsic defect or quality of the goods, as by decay, evaporation, or leakage. (c) If the loss is by a peril of the sea, no freight is payable, (d) and if the loss is owing to the fault of the vessel, the goods are paid for, deducting freight.