captured and the goods be afterwards carried to their destination the same rule will, of course, apply as in cases of the completion of the carriage after detention by an embargo or a physical obstruction to its prosecution; and upon the delivery of the goods the carrier will be entitled to his full freight, as though there had been no interruption of the voyage.31 Sec. 827. (§ 468.) Right to freight where the goods are carried contrary to the wishes or directions of the owner.— When it is said that the owner of the property becomes liable for the price of the carriage, it is to be understood that he was either the bailor or that the property was intrusted to the carrier for transportation by his direction or authority. If, however, it be in the possession of another, whether rightfully or wrongfully, who sends it contrary to the wishes and without the authority of the true owner, who afterwards reclaims it from the carrier, the question may arise whether such owner can be held liable personally for the carrier's charges. As the owner, under these circumstances, would be no party to the contract, there could be no recovery against him upon that ground; nor could it be urged by the carrier that the compulsion under which the law puts him to receive and carry the goods of all who applied, without the right to require evidence of ownership, created any obligation to pay for a service which the owner was in no wise instrumental in imposing upon him; nor could any liability on the part of the owner, or responsibility to him on the part of the carrier, grow out of the wrongful and unauthorized bailment, without a subsequent adoption or ratification of the act of the wrongdoer. The carrier would therefore stand upon the same footing as any other person who might be found in the wrongful possession of the property, and could recover no compensation from the owner for any service he might have performed in respect to the property, no matter in how good faith he might have accepted it, and even though he may have added to its value or car Beale v. Thompson, 3 Bos. & P. 31. Mumford v. The Insurance 405; The Race Horse, 3 Rob. Adm. Co., 5 Johns. 262. ried it to the destination at which the owner really preferred. to have it. And upon demand of the true owner, and a refusal to surrender it to him, the carrier would be liable to an action for a conversion, and to damages for the enhanced value,32 unless he could claim the right to deduct his charges upon the ground of a lien upon the property for his compensation.33 So if he carry the goods against the express orders of the owner, it is a gratuitous act on his part, for which he will be entitled to recover no compensation.34 Thus, where goods marked for transportation over a particular line are sent forward by a preceding carrier over a different line, the latter cannot recover for freight or maintain a lien therefor, the marks being evidence of the shipper's intention.35 Sec. 828. ($469.) Carrier cannot sue for freight until the goods are delivered. The carrier may, as has been stated, demand payment of his freight before the carriage of the goods. is undertaken; but if he fail to do so, and accept them without requiring prepayment, he cannot commence an action to recover it until he has delivered the goods, or has offered to do so. Delivery is an essential part of his contract, and it would be unjust to compel payment of the price of the carriage until it has been fully performed. Otherwise, the carrier might recover for an uncompleted service while still continuing to hold possession of the goods.36 But he will be entitled to his freight as soon as he has delivered the goods in the manner permissible for carriers engaged in his mode of carriage; and neither a delivery, nor a tender to the consignee in person, will be required, where the law treats the carriage as com 32. Brown v. Sax, 7 Cow. 95; Silsbury v. McCoon, 3 Comstock, 379; Benjamin v. Benjamin, 15 Conn. 347. (But see Silsbury v. McCoon, 6 Hill, 425, 4 Denio, 332.) 33. Martin v. Porter, 5 M. & W. 351. 5 36. Mashiter v. Buller, 1 Camp. 84; Andrew v. Moorehouse, Taunt. 435; Lane v. Penniman, 4 Mass. 91; Certain Logs of Mahogany, 2 Sumn. 589; Brittan 1". Barnaby, 21 How. 527; Gibson v. Sturge, 10 Exch. 622; Clark ve 34. Schureman v. Withers, An- Masters, 1 Bosw. 177; Railroad thon's N. P. 166. 35. Bird v. Railroad Co., 72 Ga. 655. Co. v. Diether, 10 Ind. App. 206, 37 N. E. Rep. 39, 1069, 53 Am. St. Rep. 385, citing Hutch. on Carr. plete without an actual delivery into the possession of such consignee. It has accordingly been held that a carrier by water becomes entitled to his freight when the delivery of the goods is made upon the wharf, and notice is given to the consignee, whether he accepts them or not. If he refuses them, it will be the duty of the carrier to store them for the owner; but having done all that he was required to do by his contract, by landing the goods and giving the notice, his right to the freight becomes complete.37 Where the initial carrier has received the amount of his charges from the connecting and final carrier, the right to recover freight is assigned to the latter by operation of law, and an action therefor will not lie in the name of the initial carrier.38 Sec. 829. (§ 470.) When delivery deemed complete.-And so if the whole duty of the carrier is only to carry safely to destination, and there deposit the goods in its warehouse without notice to the consignee, the freight will become due as soon as such deposit is made, and the carrier may, no doubt, sue the consignee or owner of the goods before he has taken possession of them. But if the carrier is required to hold them a reasonable length of time for the consignee, or is required to give him notice of their arrival, no suit could be brought for a personal recovery of the freight until such reasonable time had elapsed or such notice was given, and reasonable opportunity, after such notice, to come or send for the goods. Until such opportunity or time is given, as has been stated,39 the carrier continues in the custody of the goods as carrier, and a claim of the freight, or its recovery, would be inconsistent with such custody. But when the time and opportunity to take the goods have been given, the relation of carrier ceases, and that of warehouseman begins; and having done 37. The Eddy, 5 Wall. 481. No notice is necessary when the consignee has actual knowledge of the arrival of the ship, and the carrier's right to freight will be complete when he lands the goods in a proper manner. The Ravensdale, 75 Fed. 408, 410, 413. 38. Railroad Co. v. Hall, 69 Ill. App. 497; Railroad Co. v. Carlock, 69 Ill. App. 498. 39. Ante, §§ 689, 708. all that the law required of him as carrier, the right to his compensation as such becomes perfect. Sec. 830. (§ 471.) When the shipper may recover freight paid in advance. If the freight be paid in advance, and the goods be not carried, there is a failure of the consideration, and the money may be recovered by the shipper, 40 unless it be otherwise agreed between the parties, or the failure to carry be attributable to the fault of the party who owns or controls them. But if the carriage has been partly effected, and the circumstances be such that the carrier is entitled to an apportionment of the freight, he would be compelled to refund only such a proportion of the money as he had not earned. Sec. 831. (§ 472.) Parties may agree for prepayment.-It is, however, competent for the parties to agree that the freight shall be due before the completion of the carriage, or that the money thus paid in advance shall, in any event, belong to the carrier, and a number of instances are reported in which such was the agreement. And the money may not be paid strictly in the character of freight. "There is no doubt but that a man may agree to pay money on the delivery of the goods on board the ship, call it what you will."42 But such a stipula 40. Benner v. The Ins. Co., 6 Allen, 222; Chase v. The Ins. Co., 9 id. 311; Pittman v. Hooper, 3 Sumn. 50; Watson v. Duykinck, 3 Johns. 335; The Kimball, 3 Wall. 37; The Bird of Paradise, 5 id. 545; Lawson v. Worms, 6 Cal. 365; Griggs v. Austin, 3 Pick. 20; Phelps v. Williamson, 5 Sand. 578; Brown v. Harris, 2 Gray, 359; The Schooner Arthur B, 1 Alaska, 403. A local custom that freight prepaid is in no event to be returned in case of loss of the vessel on the voyage, even if proved, would not operate to overcome such a well settled rule of law as the one in question; nor is parol testimony 42. Per Gibbs, C. J., in Andrew v. Moorhouse, 5 Taunt. 435. On right to freight made payable after final sailing from last port, tion should be expressed in terms so clear and unambiguous as to leave no doubt that such was the intention. Sec. 832. (§ 473.) Consignee liable for detention of the carrier by water-Demurrage. It being the duty of the consignee to be in readiness to receive the goods, he will be liable to the carrier by water for compensation for any detention which may be caused by his fault in not promptly accepting them after he has notice that the carrier is prepared to deliver them. When a stipulation is made upon the subject in the contract of affreightment, as is frequently done where the carriage is by water, the compensation for the delay to which the carrier becomes entitled under the agreement is called demurrage. Strictly speaking, this is the only meaning of demurrage, but the word is also often used to denote those damages. which may become due when the vessel is detained beyond the agreed number of demurrage days or beyond a reasonable time for loading or unloading when the charter party or bill of lading does not stipulate for days on demurrage. The measure of damages in the case of improper detention of a vessel is not fixed and certain, but the damages to be allowed are dependent upon the circumstances. If the vessel is not employed, and no hire is to be obtained, no damages are sustained. If the vessel is under contract, or can obtain employment, the net earnings may furnish the rule. Where, however, the vessel is detained with full crew and cargo on board, all expenses going on, the earnings furnish decided assistance in determining the damages.43 In those cases, of course, where demurrage days are provided for and a rate of demurrage agreed on, that rate is prima facie the standard by which the ship-owner's loss can be measured, but either party may show that it is not the correct standard, and that another one is right and just under the circumstances of the parteiular case.44 see Price v. Livingston, 9 Q. B. Div. 679; Garston Co. v. Hickie, 15 id. 580. 43. Keyser & Co. v. Jurvelins, 122 Fed. 218, 58 C. C. A. 664; Huron Barge Co. v. Turney, 79 Fed. 109; s. c. 71 Fed. 972. 44. Moorsom v. Bell, 2 Camp. |