There appears to be little difference, in principle, between the case of the destruction of goods, without fault, while undergoing repair, discussed in the preceding section, and that of the loss of goods, without fault, during carriage. It appears to be the law, however, that the carrier can recover nothing for the carriage of goods which are lost in course of transportation and therefore cannot be delivered at their destination :
1 1832, 3 Barn. & Ad. 404.
2 Whelan p. Ansonia Clock Co., 1884, 97 N. Y. 293; Labowitz v. Frankfort, 1893, 4 Misc. Rep. 275; 23 N. Y. Supp. 1038; Rhodes p. Hinds, 1903, 79 App. Div. 379; 79 N. Y. Supp. 437. See Parsons, "Contracts" (9th ed.), Vol. II, 131.
British, etc., Ins. Co. v. Southern Pacific Co., 1896, 72 Fed. 285; 18 C. C. A. 561; 38 U. S. App. 243: Libel to recover certain sums withheld as pro rata freight on certain cotton which was in part damaged and in part destroyed while in possession of the carrier. Lacombe, Circuit Judge (p. 287): "From the decree of the district court the respondent also appeals, insisting that the carrier should be allowed to reserve from the proceeds of the damaged cotton pro rata freight for the bales which were totally destroyed, and which, of course, were never accepted by the owner at the intermediate port, and, being no longer in existence, could not be reconditioned and forwarded as damaged bales. No authority is cited in support of this contention. Presumably none could be found, for it is elementary that, except in those cases where by express contract the freight is stipulated to be paid in advance, delivery at the port of discharge is a condition precedent to the shipowner's right to have the freight."1
In the case of the disablement of the carrying vessel and a resulting delivery or tender of the goods to the owner at some port of distress, the benefit accruing to the owner from the carrier's part performance may be more obvious. But it is settled that nothing can be recovered by the carrier unless the owner voluntarily waives further carriage and consents to accept the goods at the port of distress, in which case a genuine contract to pay pro rata freight is implied.2 The leading case permitting a recovery pro rata where the goods are delivered at a port of distress is Luke v. Lyde.3 Lord Chief Justice Cockburn, in his dissenting opinion in Metcalfe v. The Brittania Ironworks Company,1 insisted that Lord Mansfield based his decision in Luke v. Lyde " not upon any fiction of a substituted contract, . . . but upon the broad principle of maritime law, that, the voyage having been interrupted without any fault of the shipowner, the merchant, who has had the benefit of partial conveyance, if he takes the goods, must pay freight pro rata," and therefore that the consent of the owner of the goods to delivery at the port of distress was immaterial. But the contrary interpretation of Lord Mansfield's decision has prevailed.2
1 Accord: Gibson v. Sturge, 1885, 10 Exch. 622; Dakin v. Oxley, 1864, 15 C. B. N. S. 646. See also Mackrell v. Simond, 1776, Abbott on "Shipping" (5th ed.), 333; (14th ed.), p. 743; Scott's "Cases on Quasi-Contracts," p. 621; Hutchinson, "Carriers" (3d ed.), Sec. 800 and cases cited.
2 Luke v. Lyde, 1759, 2 Burr. 882; 1 W. Bl. 190; Liddard v. Lopes, 1809, 10 East 526; Hopper v. Burness, 1876, 1 C. P. D. 137; Metcalfe v. Brittania Ironworks Co., 1876, 1 Q. B. D. 613; Caze v. Baltimore Ins. Co., 1813, 7 Cranch (U. S.) 358; Hurtin v. Union Ins. Co., 1806, 1 Wash. (U. S. C. C.) 530; Fed. Cas., No. 6942; Welch v. Hicks, 1826, 6 Cow. (N. Y.) 504; Callender v. Ins. Co. of N. A., 1813, 5 Binney (Pa.) 525; Richardson v. Young, 1861, 38 Pa. St. 169. For additional citations, see Hutchinson, "Carriers" (3d ed.), Sec. 815.
3 1759, 2 Burr. 882; 1 W. Bl. 190.