The merchant must use the ship only for lawful purposes, and not do anything for which it may be forfeited or detained, or the owners made liable for penalties. In case of any violation of the agreement, by employment of the ship for purposes other than those contem plated, or failure to perform the terms as to lading, &c., the amount of compensation, in case of dispute, is determined, as the circumstances of the case may require, by a jury. The words primage and average, which appear in the bill of lading, mean, the first, a small sum paid to the master; the second, as there used, certain charges, varying accord ing to the usage of different places, for towing, beaconage, &e.
Freight.—When an agreement for conveyance is expressed in the general form or when there is no actual agreement, but only one implied by law from the circumstances of the case, there results from it a duty upon the master and owners, first to deliver the goods at the place of destination, whether the ship is hired by the voyage or by the month. It is only by the entire performance of this duty that they can entitle themselves to the payment of freight. The parties may, however, so express the contract that the payment of all or part of the freight may be due before or during the course of the voyage; in such case the word freight is used in a sense which does not properly belong to it ; for iu strict usage it means only money earned by the conveyance of goods and their delivery at the place of deatina tion. Where • proyWon is made by the contract for payment of freight at the place of shipment, the question has arise whether the meaning of the parties was that the sum should be paid at all events au delivery of the goods on board, whatever might afterwards befall them ; or whether it was merely to point out the place of payment in case the freight should become due by reason of the arrival of the goods at the port of destination. In all such cases the intention of the parties is • question of construction for the court subject to any usago of the port where it was made, or of the trade with which it is con nected. The same observation will apply to cases where money has been advanced by the merchant, and it is disputed whether the money is to be considered as a loan or part payment of the freight.
If the master unnecessarily sell the goods, and so prevent both him self from earning the whole freight, and the merchant from accepting the goods, the merchant is entitled to the entire produce of his goods without any allowance for freight. If the ship has actually never com menced the voyage, the owners are not entitled to any payment what ever, although they may have incurred great expenses in lading her, i and though her failure to commence the voyage is not attributable to any neglect or misconduct of theirs. Where the contract of hiring is for a voyage out and home, at the rate of so much per month, Sc., during the time the ship is employed, and the contract is entire, no freight is due unless the ship returns home, even though she may have delivered her cargo at the But voyages out and home are distinguished in the contract, freight will be earned ou the delivery of the cargo at the outport. See further under BILL OF LADING and Fnematrr.
General Arerage.—If any part of the ship or furniture, or of the goods, is sacrificed for the sake of saving the rest, all parties interested must contribute towards the loss. This contribution is properly called
'Average.' It is sometimes called general average, In opposition to special or particular average, which is the contribution towards any kiud of partial damage or loss, or gross average, in opposition to petty average, which is the contribution mentioned in the bill of lading towards the sums paid for beaconage, towage, &c. [Avenace.] The principle of average is recognised in the maritime law of all nations.* It was introduced into the civil law from the law of Rhodes (' tit. 2, " Lex Ithodia de Jactu ; " and the Commentary of Pecknum, " In tit. Dig. et Cod.,' Ad Item Nauticam pertinentes.'") In order to constitute such a loss as is the subject of average, it must be incurred by design : the masts must be cut away, or the goods thrown overboard ; and this must be done for the sake of saving the rest, as in the case of throwing goods overboard to keep the vessel from sinking or striking on a rock, or to lighten her that she may escape from an enemy, or of cutting away a mast or a cable to escape the perils of a storm. The necessary consequences of these acts are also the subjects of average ; as where, iu order to throw some goods overboard, others or some parts of the ship are damaged ; or where it becomes necessary, in order to avoid the danger or repair the injuries caused by a storm or the enemy, to take goods out of the ship, and they are in consequence lost. The expenses also incurred in these operations are equally the subject of average. But the injuries incurred by • ship during an engagement with the enemy, or from the elements in consequence of measures taken to escape from an enemy, are not of such a nature as to fall within the definition. If goods are laden on deck, no average is recoverable in respect of the loss occasioned by throwing them overboard, unless by the usage of trade such goods are usually so laden. If a ship is voluntarily stranded for the purpose of saving her and the goods, and afterward, gets off safely, the expenses incurred by the stranding are the subject of general contribution • but if the ship be wrecked in consequence of the voluntary there is a difference of opinion whether the wrecking be voluntary, and therefore such a lose as calls for a general contribution. If, in conse. queues of such an injury done to a ship as would be the subject of average, she is compelled to go into port to repair, the necessary expenses incurred in refitting her, so as to enable her to prosecute her voyage, and the amount of wages, port duce, and provisions expended to accomplish that object, are the subject of average ; and, if the master is unable to obtain the money necessary by any other means than by the solo of a part of the cargo, the loss caused to the merchant upon such sale is also the subject of average. If, In consequence of the sacrifice made, the ship escape the danger which immediately threatens her, but is afterwards wrecked or captured, and the remain ing goods, or part of them, are saved or recaptured, these are bound to contribute average towards the loss in the first instance incurred, in proportion to their net value in the hands of the merchant after all expellees of salvage, &c, have been paid.