DEAD FREIGHT.
3. The general rule is that the delivery of the goods at the place of destination, in fulfilment of the agreement of the charter party or bill of hiding, is required, to entitle the master or owner of the vessel to freight. 2 Johns. N. Y. 327; 3 id. 321. But to this rule there are several exceptions.
When a cargo consists of live stock, and some of the animals die in the course of the voyage, without any fault or negligence of the master or crew, and there is no express agreement respecting the payment of freight, it is, in general, to be paid for all that were put on board ; but when the contract is to pay for the transportation of them, then no freight is due for those which die on the voy age. Molloy, b. 2, c. 4, s. 8 ; Dig. 14. 2. 10; Abbott, Shipp. 272.
4. An interruption of the regular course of the voyage, happening without the fault of the owner, does not deprive him of his freight if the ship afterwards proceeds with the cargo to the place of destination, as in the case of capture and recapture. 3 C. Rob. Adm. 101.
When the ship is forced into a port short of her destination, and cannot finish the voy age, if the owner of the goods will not allow the master a reasonable time to repair, or to proceed in another ship, the master will be entitled to the whole freight ; and if, after giving his consent, the master refuses to go on, he is not entitled to freight.
5. When the merchant accepts of the goods at an intermediate port; it is the general rule of marine law that freight is to 'be paid ac cording to the proportion of the voyage per formed; and the law will imply such contract. The acceptance must be voluntary, and not one forced upon the owner by any illegal or violent proceedings, as from it the law im plies a contract that freight pro rata parte itineris shall be accepted and paid. 2 Burr. 883 ; 7 Term, 381; Abbott, Shipp. part 3, c. 7, s. 13 ; 3 Binn. Penn. 445 ; 5 id. 525 ; 2 Serg. & R. Penn. 229 ; 1 Wash. C. C. 530 ; 2 Johns.
N. Y. 323 ; 7 Crane'', 358; 6 Cow. N. Y. 504; Marshall, Ins. 281, 691 ; 3 Kent, Comm. 182; Comyns, Dig. Merchant (E 3), note, pl. 43, and the cases there cited.
6. When the ship has performed the whole voyage, and has brought only a part of her cargo to the place of destination, in this ease there is a difference between a general ship and a ship chartered for a specific sum for the whole voyage. In the former case, the freight is to be paid for the goods which may be delivered at their place of destina tion ; in the latter, it has been questioned whether the freight could be apportioned ; and it seems that in such case a partial perform ance is not sufficient, and that a special pay ment cannot be claimed except in special cases. 1 Johns. N. Y. 24; 1 Bulstr. 167 ; 7 Term, 381; 2 Campb. 466. These are some of the exceptions to the general rule, called for by principles of equity, that a partial.
performance is not sufficient, and that a par tial payment or ratable freight cannot be claimed.
7. If goods are laden on board, the shipper is not entitled to their return and to have them relanded without paying the expenses of unloading and the whole freight and sur rendering the bill of lading, or indemnifying the master against any loss or damage he may sustain by reason of the non-delivery of the bill. 6 Du. N. Y. 194 ; 8 N. Y. 529. In general, the master has a lien on the goods, and need not part with them until the freight is paid ; and when the regulations of the revenue require them to be landed in a public warehouse, the master may enter them in his own name and preserve the lien. His right to retain the goods may, however, be waived either by an express agreement at the time of making the onginal contract, or by his sub sequent agreement or consent. See LIEN;