When the merchant accepts of the goods at an intermediate port, it is the general rule that freight is to be paid according to the proportion of the voyage performed ; and the law will imply such contract ; Bork v. Norton, 2 McLean 423, Fed. Cas. No. 1,659 ; Robinson v. Ins. Co., 2 Johns. (N. Y.),, 323. 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 snail be accepted and paid; 2 Burr. 883; Gray v. Waln, 2 S. & R. (Pa.) 229, 7 Am. Dec. 642; Caze v. Baltimore Ins. Co., 7 Cra. (U. S.) 358, 3 L. Ed. 370; Welch v. Hicks, 6 Cow. (N. Y.) 504, 16 Am. Dec. 443 ; 3 Kent 182 ; Com. Dig. Merchant PI 3), note, pl. 43.
If the master refuse to repair his vessel and send on the goods, or to procure other vessels for that purpose and the owner of the goods then receives them, such an acceptance will not be such a voluntary one as to make him liable for freight pro rata; Welch v. Hicks, 6 Cow. (N. Y.) 504, 16 Am. Dec. 443; Atlantic Mut. Ins. Co. v. Bird, 2 Bosw. (N. Y.) 195 ; and where the port designated in the charter-party was unsafe, the master was held justified in discharging part of, his cargo at another port in order to be able tO proceed with the rest to the point designat ed ; [1896] 1 Q. B. 586 ; L. R. 6 P. D. 68. ' When the ship has 'performed the Whole voyage, and has brought only a part of her cargo to the place of destination, 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 per formance is not sufficient, and that a special payment cannot be claimed except in special cases ; Post v. Robertson, 1 Johns. (N. Y.) 24 ; 2 Campb. 466. Proof that a vessel re ceived the number of cases of oil stated in the bills of lading, that none were stolen during the voyage, and that all on board were delivered alongside by her tackles into lighters, entitles her to freight on all shown by the bills of lading, though there may have been a shortage when the oil reached its destination; Steamship Den of Ogil Co. v.
Standard 011 Co., 189 Fed. 1020. Where a cargo owner is allowed, as damages against a vessel, for loss of cargo, its full value at the port of delivery, he' is not entitled to a reduction in freight on account of the loss; Carolina Portland Cement Co. v. Anderson, 186 Fed. 145, 108 C. C. A. 257.
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; Bartlett v. Carnley, 6 Duer (N. Y.) 194. In general, the master has a lien on the goods, and need not part with them until the freight is paid ; Brittin v. Barnaby, 21 How. (U. S.) 527, 16 L. Ed. 177 ; 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 ; Abb. Ship. pt. 3, ch. 3, § II. His right to retain the goods may, however, be waived either by an express agreement at the time of making the original contract, or by his subsequent agreement or consent. The refusal of a master to deliver a cargo until security is furnished for the freight gives no right of action to the charterer, as the cargo is subject to a lien for freight; The Ira B. Ellems, 48 Fed. 591. See LIEN; MARITIME LIEN ; AVERAGE.
If freight be paid in advance and the goods are not conveyed and delivered ac cording, to the contract, it can, in all cases, in the absence of an agreement to the con trary, be recovered back by the shipper ; Phelps v. Williarason, 5 Sandf. (N. Y.) 578.
The captor of an enemy's vessel is entitled to freight from the owner of the goods if, he perform the voyage and carries the goods the port of original destination ; 1 Kent 131; but in such cases the doctrine of freight pro rata is entirely rejected; 4 Rob. Rep. 278 ; 5 id. 67; 6 id. 269.
See COMMON CARRIERS ; HARTER ACT ; SHIP; SEAWORTHY; IMPAIRING THE OBLIGATION OF CONTRACTS; RATES; INTER-STATE COMMERCE COMMISSION.