The loading of the cargo.—Cargo is a term which varies in its meaning according to the document in which it appears; but unless there is something in the context to give it a different signification it means, in a charter-party, the entire load of the ship which carries it. The charter-party states the port or ports of destination of the cargo, and the freight to be paid therefor, which may be either a gross sum or so much per ton, or so much for each tub, cask, or other package as the case may be, of the goods comprising the cargo. If the agreement is not to pay a certain sum for the entire ship, or a certain portion of it, but to pay so much per ton, the charterer usually covenants to load a fixed amount or a full cargo. It is immaterial whether the charterer loads with his own goods or those of others. Where the charterer has agreed to pay a certain sum for the whole or a specified part of the ship, that sum will be payable even although he has not supplied enough for a full cargo. But if he has undertaken to furnish the latter and to pay a certain sum per ton or package, he will in like manner be bound to pay for as many tons or packages as the ship, or part hired, was capable of contahiing, even although he has not been able to put on board any lading at all. It is well known that the actual burden of which a ship is capable generally exceeds that at which she is registered; consequently, if the char.
terer enters into a contract to supply a full cargo for a ship, the burden registered being that referred to in the contract and being less than tho actual accommodation of the ship, he cannot insist upon limiting the amount of the cargo he is to supply to the amount referred to as the ship's burden. But if the agreement to supply a full cargo is followed by such words as "say about 1000 tons," this would measure the quantity which the shipowner is bound to accept.
And the shipowner is himself under some most important obligations. These are generally expressed in the charter-party, or some of them may be implied by law. The ship must be ready for loading, and at the appointed place, at the time specified ; but a charterer should remember that in the absence of express stipulation, he is liable for not producing a cargo, though not personally in fault in not doing so. It is clearly established that where there is a contract to carry goods in a ship there is, in the absence of any stipulation to the contrary, an implied engagement on the part of the owner that the ship is reasonably fit for the purposes of such carriage. But this condition of seaworthiness extends only to the fitness of the ship at the commencement of the voyage; if it is to be extended further it must be done by express stipulation in the charter-party. There was held to be a breach of the condition for fitness where a merchant shipped cattle on board the owner's ship, which had on her previous voyage carried cattle suffering from foot and mouth disease, as a consequence of which the merchant's cattle were infected ; and the merchant was awarded the full value of the cattle, notwithstanding the fact that the contract of carriage had limited the shipowner's liability in respect of cattle to .1'5 per head.
Transit of cargo.—lluring transit, the cargo of a ship is liable to various contingencies unknown in carriage by land. It may happen that through war, or otherwise, the ship is unable to land the cargo at the port of consignment, but it is found necessary to land and sell it elsewhere. Or the ship may meet with such stress of weather as to require a sacrifice of the cargo or some part of it. 1Vhere the parties have entered into a contract by which freight is made payable in one event only, viz. that of delivery of the cargo according to the terms of the contract, the owner would not be en titled to recover freight if no such delivery has been made ; he should have provided in the contract for the emergency which has arisen. Such a pro vision is now always made in a charter-party or bill of lading. By a certain charter-party the freight was made payable upon the delivery of the cargo at the port of destination, but the shipowner was held not to be entitled to the freight under the following circumstances. The ship meeting with sea damage from heavy weather, the captain at an inter mediate port justifiably sold part of the cargo to raise funds for the neces sary repairs, the cargo so sold fetching more than it would have done if carried to the port of destination, and the proceeds of the sale were paid over to the charterer.
In such cases as the last, the general position of the owner of the cargo is discussed in the article on AVERAGE. The position of purchasers of cargo so sold is worth notice. The cases in which have been considered the rights of the purchasers of cargo from the captain, were for a long time only those where the cargo had begs on shore. The rule then laid down, and now generally applied, is that the captain becomes agent for sale of the cargo, that is, has authority to sell so as to bind the owners of the goods though they were entrusted to him for a different purpose, namely, carriage to their port of destination. But this agency only arises where there is a necessity, and it lies on those who claim a title to the cargo, as purchasers from the captain, to prove that this necessity clearly existed. It is not sufficient merely to prove that the captain thought he was doing the best for all concerned, or even that the course adopted was, so far as can be ascertained, the best for all concerned. The principle is that the captain is authorised by the owners only to convey the goods to the port of discharge, and that nothing but necessity can authorise him to adopt any other course of action.