The contract for freight is in law an entire contract; that is, it is a contract for the delivery of all the goods at the end of the whole voyage; and therefore no freight is payable unless the whole voyage is performed, (w) nor unless all the goods are delivered, or offered for delivery on payment. (x)

(r) Brittan v. Barnaby, 21 How. 527.

(s) Lane v. Penniman, 4 Mass. 91; Palmer v. Lorillard, 16 Johns. 348; Frothingham v. Jenkins, 1 Cal. 42: Logs of Mahogany, 2 Sumner, 589; Moller v. Young, 5 Ellis & B. 755, 34 Eng. L. & Eq. 92, reversing the same case in the Queen's Bench, 5 Ellis & B. 7, 30 Eng. L. & Eq. 345.

(t) The cargo of the Anna Kimball, 2 Sprague, 33. The lien for freight, like any other, may be waived; and this is generally the case where the time and place of payment are inconsistent with the lien. Raymond v. Tyson, 17 How. 53; The Sch. Volunteer, 1 Sumner, 551; Chandler v. Belden, 18 Johns. 157; Alsager v. St Katherine's Dock Co. 14 M. & W. 794; Pickman v. Woods, 6 Pick. 248. A delivery without saying anything about the freight would be considered a waiver of it. Bags of Linseed, 1 Black, 108. It is also stated in this case, that where goods are put in a warehouse by 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 for the lien. See also Sears v. Wills, 4 Allen, 212.

(u) Bigelow v. Heaton, 6 Hill, 43, 4 Denio, 496.

(uu) Paynter v. James, Law Rep. 2 C. P. 348.

(v) Wallis v. Cook, 10 Mass. 510; Winchester v. Patterson, 17 Mass. 62; Steamboat John Owen v. Johnson, 2 Ohio State, 142; Jones v. Hoyt, 23 Conn. 157. In respect to stipulations, it has been said, that they must be in words so definite as to indicate an agreement that the general operation of the law-merchant in respect to the bills of lading is not to prevail, and they must be in writing, and signed by the parties. Brittan v. Barnaby, 21 How. 527.

(w) The Nathaniel Hooper, 8 Sumner, 554; Hunter v. Prinsep, 10 East, 394; Tirrell v. Gage, 4 Allen, 245; Barker v. Cheriot, 2 Johns. 352; Armroyd v. Union Ins. Co. 3 Binn. 437; Union Ins. Co. v. Lenox, 1 Johns. Cas. 383; Sampayo v. Salter, 1 Mason, 43; Case v. Baltimore Ins. Co. 7 Cranch, 858.

(x) Sayward v. Stevens, 3 Gray, 97.

• 294 *3. Of the Delivery of the goods.

Although the contract of freight is entire, it may be made separable, either by the terms of the bill of lading, or by the acts of the parties. It is separable by the terms of the bill of lading, which is the contract of affreightment, when the freight is made payable either by the quantity, or package, or parcel, separately; or where different parts of the cargo are shipped on distinct and separate terms; and in such cases, the consignee must pay for what is delivered agreeably to those terms. (y)

It is made separable, or rather it is divided by the act of the parties, if a part of an entire cargo is delivered to the consignee and accepted by him; for then he must pay the freight of that part. (z) But the consignee may refuse to receive any part of an entire cargo, if the whole be not offered, and then is not bound to pay any part of the freight. (a) If only a part of the goods is delivered and accepted, and freight for that part is demanded, the shipper may have his claim against the ship-owner for the value of the goods not delivered; and this he may offset against the claim for freight for what he receives. (b)

The shipowner must indemnify the shipper for the full value of the goods if lost or injured, unless he can prove that the loss or injury arose from a cause for which he is not responsible. (c) If he discharges this burden of proof by showing that to be the case, the shipper may then reestablish his claim by proving that the loss or injury might have been prevented by due care and skill on the part of the master or owner. (d) * But if the owner pays to the shipper the full value of goods not delivered, he may deduct therefrom the freight which would have been payable to him had he delivered them. (e) The freight cannot be demanded, unless the goods are delivered, or tendered, or delivery is prevented by the act or fault of the shipper or consignee. (f) 1 Still, however, if at the end of the voyage, the consignee is prevented from receiving them by the action or prohibition of government, this, although not his fault, is his misfortune; for the shipowner has done all he is bound to do, and the whole freight is earned. (g) But if the ship cannot reach the port by reason of a blockade, or any similar cause, this, though not the fault of the ship, is its misfortune; for the voyage is not finished in fact, and the freight is not earned. (h)

(y) Christy v. Row, 1 Taunt. 300; Ritchie v. Atkinson, 10 East, 295; M'Gaw v. Ocean Ins. Co. 23 Pick. 405; Frith v. Barker, 2 Johns. 327.

(z) Hinsdell v. Weed, 5 Denio, 172.

(a) Sayward v. Stevens, 3 Gray, 97.

(b) Hammond v. McClures, 1 Bay, 101; Edwards v. Todd, 1 Scam. 462.

(c) The mode of proceeding is for the shipper to prove the delivery of the goods to the carrier, and their non-delivery, or partial delivery. The burden is then on the carrier to show that he was prevented by one of the excepted perils from making delivery. Clark v. Barnwell, 12 How. 280; Hastings v. Pepper, 11 Pick 41; Alden v. Pearson, 3 Gray, 348; The Ship Martha, Olcott, Adm. 140; The Sch. Emma Johnson, Sprague, 527.

(d) Clark v. Barnwell, 12 How. 280 Hunt v. Propeller Cleveland, 1 Newb Adm. 221, 6 McLean, C. C. 76.

(e) Knox v. The Ninetta, Crabbe, 544; Arthur v. Sch. Caseins, 2 Story, 81; The Joshua Barker, Abbott, Adm. 215; Basin v. Richardson, 20 Law Rep. 129, 5 Am. Law Reg. 459.

The usages of trade have much influence in determining the place at which the goods should be delivered, and manner of delivery. (i) Thus, in general, a delivery at a suitable, safe, and reasonably convenient wharf, with prompt notice (j) to the consignee, is a sufficient delivery. (k) 2 And for loss or injury to goods arising from delivery on an unfit wharf or at an unfit place, the owner is responsible. (kk) Different consignments to different consignees should be arranged separately; (l) and knowledge by the consignee, that the vessel has arrived and will discharge her cargo at a particular place, if derived otherwise than from notice to him, is not sufficient. (m) But a notice in a news(f) Bradstreet v. Baldwin, 11 Maw. 229; Clendaniel v. Tuckerman, 17 Barb. 184; Brown v. Ralston, 4 Rand. 504, 9 Leigh, 532.