compensation. The law is thus stated in the leading case of Tindall v. Taylor 3 by Lord Campbell: "We entirely agree to the law laid down by Lord Tenterden in his treatise (8th ed.), p. 595, and in Thomson v. Trail, when applied to a general ship, that a merchant, who has laden goods, cannot insist on having them relanded and delivered to him without paying the freight that might become due for the carriage of them, and indemnifying the master against the consequences of any bill of lading signed by him.' It is argued that there can be no lien on the goods for freight not yet earned or due; but when the goods were laden to be carried on a particular voyage, there was a contract that the master should carry them in the ship upon that voyage for freight; and the general rule is that a contract once made cannot be dissolved except with the consent of both the contracting parties. By the usage of trade, the merchant, if he redemands the goods in a reasonable time before the ship sails, is entitled to have them delivered back to him, on paying the freight that might become due for the carriage of them, and on indemnifying the master against the consequences of any bills of lading signed for them; but these are conditions to be performed before the original contract can be affected by the demand of the goods. It would be most unjust to the owners and master of the ship if we were to hold that upon a simple demand at any time the goods must be delivered back in the port of outfit." 5

2 Tindall v. Taylor, 4 E. & B. (Eng.) 219 (1854); Bailey v. Damon, 3 Gray (Mass.), 92 (1854).

3 Supra.

42 Car. & P. 334.

5 Cases which lay down a right to the entire amount of freight are: Tindall v. Taylor, 4 E. & B. (Eng.) 219 (1854); Bartlett v. Carnley, 6 Duer (N. Y.), 194 (1856); Van Buskirk v. Purinton, 2 Hall (N. Y.), 561 (1829); Collman v. Collins, 2 Hall (N. Y.), 569 (1829). On the other hand, the following cases point out the possibility of reducing the amount of damages: Burgess v. Gun, 3 Har. & J. (Md.) 225 (1811); Bailey v. Damon, 3 Gray (Mass.), 92 (1854); Clemson v. Davidson, 5 Binn. (Pa.) 392 (1813).

§ 685. Right to freight on land.

Freight due for land carriage under the common law, though it derives its name from maritime freight, is of a different nature. There is no separate distinct interest, apart from the chose in action which the carrier has to recover his charges. It is, therefore, not quite literally accurate to speak of freight coming into being, under the common law, at the particular moment when the carriage begins. Freight which is due because of an express agreement or because of the provisions of the common law is not earned until delivery, by the carrier, as will be seen; but on the other hand the carrier obtains by the agreement or by the law a right to earn it by completing the carriage just as soon as delivery is made to him. After possession is given to the carrier, the owner cannot repossess himself of the goods without becoming liable to make payment.

There seems, however, to be a difference as to the amount due the carrier before the journey has begun and that due after the carrier has actually begun to carry. In the former case damages alone would be due. But in the latter case the carrier is entitled to the whole amount of freight. The owner who takes his goods before they have arrived at their destination, but after they have been put in transit, must pay the full amount of the freight. Full performance of the carriage is a condition. precedent to liability; and by taking his goods during the journey the owner has waived further performance of the condition and must therefore fully perform on his side.

686. Effect of carriage over a portion of the journey. Where the carriage is interrupted when partly completed, since there is no delivery at the destination, the freight is not due; and since freight is an entirety there is nothing which can

6 Shipton v. Thornton, 9 A. & E. (Eng.) 314 (1838, semble); Violett v. Stettinius, 5 Cr. C. C. (Dist. Col.) 559 (1839); Braithwaite v. Power, 1 N. Dak. 455, 48 N. W. 354 (1891).

properly be recovered, in the absence of a new agreement. In the case of Luke v. Lyde, to be sure, Lord Mansfield attempted to establish the doctrine that compensation proportioned to the distance the goods were carried, that is, freight pro rata itineris, might be recovered where the carrier was not at fault; but the attempt failed, and it is well settled that where the carriage is not completed, even though the carrier is not in fault and the owner receives a benefit, freight pro rata itineris cannot be recovered. If, however, the owner voluntarily receives the goods short of destination by mutual consent of himself and the carrier, there is a novation, one term of which is the implied agreement to pay reasonable compensation, which is freight pro rata itineris.

Where the goods arrive at their destination and are offered for delivery by the carrier, but by the law of that place no delivery can be made, the carrier's obligation is fulfilled and he is entitled to freight. 10 So where at the port of destination a vessel was not allowed to land part of her cargo, consisting of petroleum, but other goods were landed, it was held that freight was earned on the petroleum.11

§ 687. No freight without delivery.

As the whole freight is an indivisible unit, it is obvious that without some new arrangement between the parties the carrier will not be entitled to any freight whatever for goods not delievered at the destination. No matter how little the carrier may lack of making the required delivery, only an absolute

72 Burr. 882 (1759).

8 Hunter v. Prinsep, 10 East (Eng.) 378 (1808); Vlierboom v. Chapman, 13 M. & W. (Eng.) 230 (1844); Caze v. Baltimore Ins. Co., 7 Cr. (U. S.) 358, 3 L. Ed. 370 (1813); Western Transp. Co. v. Hoyt, 69 N. Y. 230, 25 Am. Rep. 175, B. & W. 287 (1877).

9 The Propeller Mohawk, 8 Wall. (U. S.) 153, 19 L. Ed. 406 (1869); The Teutonia, L. R. 3 Adm. 394 (1871).

46

10 Cargo ex Argos," L. R. 5 P. C. 134 (1873); Morgan v. Insurance Co., 4 Dallas (U. S.), 435, 1 L. Ed. 907 (Pa., 1806).

fulfilment of his obligation can entitle him to any freight whatever. 12 To quote from one case:13 "The consignor is not bound to pay until the transportation is completed in accordance with the contract, but he may not prevent the master's earning his freight. If he takes possession of the goods short of their destination, when the master, not in default, is willing and able to complete the transportation, he must pay full freight. He has prevented or waived the performance of the condition precedent. The law, therefore, regards it as performed. It is true that in this case the performance was prevented by the consignee, and not by the shipper; but in this respect the consignor is represented by the consignee, and the former is responsible for the acts of the latter. The consignor has done his full duty to the consignee when he has paid or agreed to pay freight to a certain point. If the consignee sees fit to take the goods at some other place where the transportation is only partially completed, and when the master is able and willing to perform his contract, he, the consignee, can make no claim against the consignor, and the latter should therefore pay the freight which the master was able, willing, and had a legal right to earn. There can be no action unless delivery is either made or prevented from being made by the act or fault of the shipper or consignee."

§ 688. Freight indivisible as a rule.

Where goods are shipped in a single shipment the freight cannot be broken up, and a pro rata amount charged for a part delivered. Thus the carrier, offering part, cannot libel it for freight, and where part has been delivered, and the carrier

12 Acc. Brittan v. Barnaby, 21 How. (U. S.) 527, 16 L. Ed. 177 (1858); McCullough v. Hellweg, 66 Md. 269 (1886); Lane v. Penniman, 4 Mass. 91 (1808); Harris v. Rand, 4 N. H. 259, 17 Am. Dec. 421 (1827); Western Transportation Co. v. Hoyt, 69 N. Y. 230, 25 Am. Rep. 175, B. & W. 287 (1877); Braithwaite v. Power, 1 No. Dak. 445, 48 N. W. 354 (1891). 13 Braithwaite v. Power, supra.

14 In re Vitrified Pipes, 14 Blatch. 274, Fed. Cas. 10,536 (1877), reversing 5 Ben. 402, Fed. Cas. 14,280 (1871).

fails to deliver the remainder, he is entitled to no freight.15 Thus in a case where lumber was shipped to San Francisco and part of it was lost on the voyage, the court held that if the whole amount shipped constituted a single unit, which was not delivered, no freight was due. At the trial the defendant offered parol evidence that the several articles named in the bill of lading were originally obtained and prepared and fitted for one house, and intended to be put together as such in San Francisco. To this evidence the plaintiffs objected; but the judge admitted it, and instructed the jury that if they believed that the articles enumerated in the bill of lading constituted the parts. of one house, and the portions lost were lost by reason of their being improperly stowed on deck, and were a substantial part of the house, without which the house would be wholly incomplete, and of no practical utility as a house, in short, no longer the article which was shipped, then, the freight being payable on the whole in one entire sum, the plaintiffs could not recover freight for the lumber actually carried, and which arrived at San Francisco, although the lost articles could be easily supplied in the market by the purchase of others of like character.

This charge was held to be correct. Mr. Justice Bigelow said: "Unless freight is wholly earned by a strict performance of the voyage, no freight is due or recoverable. The contract of the carrier is indivisible, and he can recover for no portion of the voyage that has been made, until the whole is finished and the goods have reached their destination."

§ 689. Entire freight when goods arrive damaged.

If the goods arrive in specie, but have been damaged without fault of the carrier, entire freight is due.16 If, however,

15 Western Transportation Co. v. Hoyt, 69 N. Y. 230, 25 Am. Rep. 175, B. & W. 287 (1877).

16 Lawrence v. Denbreens, 1 Black. (U. S.) 170, 17 L. Ed. 89 (1862);