
    Charles D. Crawford vs. John Williams.
    1. Contract. Carrier. Freight pro rata itineris. Where a carrier’s right to freight is founded in contract, it must appear that he has performed its conditions, or that he has been excused performance hy the owner of the cargo, to entitle him to demand it.X So, where the master of a vessel con" i tracted to deliver his cargo at its port of destination for a stipulated price, and after performing the greater part of his voyage was prevented hy in- ¡ evitable casualty from prosecuting it further, hut transhipped the cargo to another vessel without the knowledge of the owner of the cargo, and upon a contract for such transhipment of three times the amount of his original contract, which the owner had to pay on delivery of the cai’go at its port | of destination ;said master is not entitled to his freight pro rata for so much of the voyage as he actually performed under his contract, between - the port of original shipment and the port of necessity.
    2* Agent. When vessel disabled in transitu. Agency of master. Same. When a vessel is so disabled during its voyage that it cannot proceed on the same, and the cargo is in peril of loss, the law implies an agency from necessity, on the part of the master, to act for the interest of all concerned; and it is his duty in such case to tranship the cargo, and he has a right to charge it with such freight as it was proper to give; but it does not follow that he will be entitled to freight pro rata for the performance of part of the voyage. I t i i
    
      3. Freight. When pro rata freight is due. Freight is due pro rata itineris when the vessel by inevitable necessity is forced into a port short of her destination, and is unable to prosecute her voyage further, and the cargo is there voluntarily accepted by the owner. The consent of the owner to accept the cargo at such intermediate port, must either by word or act, be expressly given or fairly deducible, and when so given, the original contract is dissolved, and the claim to such pro rata freight rests upon the basis of a new contract, which the law implies.
    FROM MAURY.
    The plaintiff in error brought his action of assumpsit in the circuit court of Maury, against the defendant, for freight which he claimed as the owner of a flat-boat, upon whicli he had conveyed the defendant’s cargo of cotton from Maury county to Grand Gulf on the Mississippi river. It appears that Crawford had contracted to deliver the cotton, numbering some three hundred and forty-six bales, to Williams, in the city of New Orleans, at the rate of $2 per bale, and that he performed the voyage- as far as Grand Gulf, where, by some unavoidable casualty the boat was wrecked and disabled from prosecuting the voyage further. In this condition of things the cotton was transhiped on the steamer Ma-rengo, without the consent of the owner of said cotton, and consigned to said Williams at New Orleans at the rate of $6 per bale, which Williams had to pay before he could get possession of said cotton. It seems, also, that the master of the Marengo paid the captain of the flatboat, the plaintiffs agent, about $180, but upon what account does not clearly appear.
    This action was brought by Crawford to recover his fro rata freight for so much of the voyage as he actually performed. There was verdict and judgment below for "Williams, (Mabtiíj, Judge, presiding,) from wbicli Crawford appealed in error.
    M. S. EbieksoN, for plaintiff.
    1. We admit tbat tlie majority of the American courts, in direct opposition to the English courts, and the opinion of continental jurists, hold that where there is a contract of affreightment to deliver goods at some particular port, and the vessel from accident or any other necessity, becomes unable to complete the voyage and abandons the cargo at some intermediate point, the vessel cannot demand freight jpro rata, unless the cargo is there accepted. 2 Am. L. C., 676-679.
    2. But if the shipper either expressly or impliedly accepts the cargo at such intermediate port with the assent of the master of the'vessel, he is bound to pay freight pro rata. 2 Am. L. C., 678.
    3. If the master of the vessel does not assent to deliver the cargo at such intermediate point to the shipper, but offers or does tranship the cargo to the port of destination, he is entitled to full freight. 2 Am. L. 0., 678.
    4. But neither of these principles apply to the present case, and we shall therefore not attempt to controvert their correctness. Here the cotton was transhipped by the master and delivered at the port of destination, but at an increased expense over that anticipated at the time of contract of affreightment; and the question now is, upon whom shall it fall, or how shall it be apportioned ?
    1. We admit that if this additional expense was su-perinduced by the fault or neglect of the plaintiff or his agents, be would not only have to bear tbe loss of bis freight, but would be bound to pay damages for the negligence of himself or his agent.
    X 2. But if the vessel, from a necessity superinduced by the act of God, the public enemy, or the dangers of the river, were wrecked, and to save the cargo from such peril these expenses were incurred, then the master of the vessel would not be bound to pay them, and the loss would fall upon the owner or insurer; for in all such cases the master is clothed with power independent of the contract of affreightment, to bind the goods and cargo for any sum necessary to extricate them from peril or for furtherance of the object of the voyage; he may hire another vessel to carry it to the port of destination, and if at an increased expense the owner or insurers will have it to pay, because it was incurred in saving the cargo from a peril excepted out of the plaintiff’s contract, the risk of which they took upon themselves; and whatever was expended in saving them from this loss they would be bound to pay. 2 Am. .L. C., 078. 3 Kent, 212. 4 Johns. Ch. R., 214. Johns. R., 262. 36 Com. L. R., 150, 158.
    3. The steamboat, “Marengo,” was allowed six dollars per bale “for saving and bringing the cotton to the port of destination,” and the plaintiff is entitled to freight according to the original contract, to the port of necessity, and the owners or insurers paying the expenses of saving the cargo at the port of necessity, and freight from there to the port of destination. This would only give the plaintiff the freight he actually earned, and compels the owners or insurers only to pay for saving the goods from a risk which they alone had assumed; which apportionment is classed under the head of general, average, as has often been decided by onr courts. 2 Am. L. C., 651. 3 Rent, 232, 244, 248. 3 Barn. & Aid., 523. 2 Am. L. C., 572, 589. 3 Kent, 231, note. 13 Peters, 331, 344.
    4. The defendant in this case, in settling with the consignees, retained in his own hands the amount of freight contracted to be paid the plaintiff; and surely as they paid it to the defendant, he cannot, upon any principle of equity or justice, detain, it from the plaintiff.
    5. D. FRTeesoit and Myers, for defendant.
    1. In all cases of loss the onus is on the carrier to show diligence. Story on Bailments, 523, and cases there cited.
    2. If loss occur by perils of the sea, which might have been avoided by exercise of reasonable sKll or diligence, it is not such loss by perils of the sea as will exempt the carrier from liability. Story on Bail-ments, 523.
    3. If the carrier cannot show" that the loss of the goods occurred by one of the excepted perils, he must pay the loss; and proof of negligence is unnecessary to charge him. U. S. Dig., Sup. 3 voh, p. 790. MoCall vs. Brook, 5 Strob, 119.
    4. Freight, in the common acceptation of the term, means the price for the actual transportation of goods by sea from one place to another. The delivery of the goods at the place of destination, according to she terms of the charter, is necessary to entitle the owner of the vessel to freight. The condition of the delivery of the cargo is a condition precedent, and must be fulfilled. A partial performance is not sufficient. 3 Kent’s Com., p. 219, 227. Brown vs. Balston, 4 Randolph, 504.
    5. Freight pro rata itmeris is not ordinarily due unless there has been a voluntary acceptance of the cargo by the owner at an intermediate port, and not when accepted of necessity. Gaze vs. Baltimore Insu-rmee Company, 7 Cranch, 358. TJ. S. Dig., Sup. 2 vol., p. 75.
    6. If the vessel be disabled the master may repair his vessel, or hire another vessel and complete the voyage, and thereby earn his freight; and he may charge the cargo with the increased freight arising from the hire of the new vessel. 3 Kent’s Com. 212.
    7. Hut extra freight means the surplus beyond which the freight would have been by "the original charter party, if no necessity of hiring another vessel had existed; and the owner of the goods is not liable to double freight; that is, the old and new freight united. 4 Johns. Oh. R., 226, 227, Searle vs. Seovell. Vide 1 Sw,an, 347.
   Totteít, J.,

delivered the opinion of the court.

Assumpsit. The claim is for freight on three hundred and forty-six bales of cotton, shipped on plaintiff’s boat, “old Maury,” in Maury county, Tennessee, and to be delivered to the defendant, the consignee, at New Orleans, at the rate of two dollars per bale. The “old Maury” was wrecked by a mere accident on the way, about one hundred miles above New Orleans, and the cotton reshipped by the master, the plaintiff’s agent, on. the steamer “Marengo,” and taken into port at New' Orleans, wliere she claimed a freight on the cotton at the rate of six dollars per hale. Her hill of lading given to the “ old Maury,” entitled her to demand this freight, as appears by the evidence of W. J. Frierson, and defendant was compelled “under an award to pay it before he could get possession of the cotton. The master of the - old Maury ” received from the Ma-rengo ” $180.00, which, as we understand it, was on account of freight. This, however, is not a material circumstance in the case. The old Maury ” was partially filled with water, and in a sinking condition when its cargo was transhipped in the Marengo.”

His Honor, the circuit judge, instructed the jury in effect, that the plaintiff’s right to freight was upon condition that he deliver the cotton to the consignee at the port of destination; ' that if his own hoat became. disabled from any cause, he might tranship the cargo upon another boat, and thus comply with the contract and be entitled to the freight; that if his own boat became disabled from casualty of the river it was his duty to use every reasonable exertion to save the cargo and forward it to another boat; but if the freight charged upon the transhipment exceeded that which the plaintiff was to have by his contract, the plaintiff would not be entitled to any freight. The charge is very full, but this is all that is material to the facts of the case. The judgment was for defendant, and the plaintiff appealed in error.

The counsel for' plaintiff insists that he is entitled to freight jpro rata to the port of necessity, where the cotton was transhipped on the “ Marengo; ” that the voyage was arrested by an' accident of the river, and without any fault of the plaintiff or his agents; that in such case, it was proper, in order to save the cargo, to tranship it on another vessel, to which it became liable for freight and reasonable charges, from the place where the voyage was arrested to the port of destination, and that the plaintiff was entitled to freight pro rata for that portion of the voyage which he had performed.

We cannot agree to the position assumed by the counsel. The plaintiff’s right to freight is founded in contract, and to entitle him to demand it, it must appear that he has performed its conditions, or that he has been excused performance by the owner of the cargo.

f In cases of necessity, says Mr. Kent, as where the ship is wrecked, or otherwise disabled in the course of the voyage, and cannot be repaired, or cannot, under the circumstances, without too great delay and expense, the master may procure another competent vessel to carry on the cargo, and save his freight. If other means to forward the cargo can be procured the master must procure them or lose his freight; and if he offers to do it and the freighter will not consent he will then be entitled to his full freight. 3 Kent’s Com. Griswold vs. New York Insurance Co., 3 Johns. R., 321.

He is permitted in such case, to forward the cargo by another vessel, and this will be deemed a compliance with his contract and entitle him to freight. But if it be not forwarded to the place of destination, the condition upon which the right to freight depends has not been performed, and no such right can exist unless the owner of the cargo consented to receive it at the intermediate port, where the voyage from necessity was arrested. Hunter vs. Prinsip, 10 East, 378.

But the freight charged hy the “ Marengo ” was a greater snm than that stipulated for the entire voyage; and if it he ' considered that the “ Marengo ” was employed hy the plaintiff so as to enable him to comply with his .contract to deliver the cargo to New Orleans, 'there remains nothing due to the plaintiff under his contract.

There is no question hut that it is the duty of the master of the “old Maury,” acting as the agent of the owner of the cargo, to tranship it, and he had the right to charge it with such freight as it was proper to give. His own vessel being disabled so that he could not proceed on the voyage, and the cargo being-in peril of total loss, the law implies an agency from ’ necessity, that the master may act for the interest of all concerned. 3 Kent’s Com., 212. Scarle vs. Scovell, 4 Johns. Ch. R., 218. But it does not follow that he will he entitled to freight pro rata for the performance^, of part of the voyage.

That was not the agreement, and he must hear his portion of a loss occasioned hy an accident that might occur, and in this case was inevitable. The defendant was compelled to pay three times the stipulated freight, and the cargo was in some degree, injured hy the accident. Is he, in addition to this, liable to pay a pro rata height to the plaintiff? If so, the entire loss is ■ made to fall upon the owner of the cargo or upon his insurer, to whom he has paid a premium for indemnity.

In Callender vs. Insurance Co. of North America, 5 Binney 525, reported also in 2 A. L. Cases, 588. Tilghman, O. L, in view of the authorities, states the rule to be, that pro rata, freight is not due unless the consent of the merchant, either by word or action, has been expressly given, or may- be fairly deduced, to accept his goods at an intermediate port; and such consent being given, the original contract is dissolved and a new one arises. And so Mr. Kent, 3 Com., 229, “freight pro rata itmeris is due where the ship, by inevitable necessity, is forced into a port short of her destination, and is unable to prosecute the voyage and the goods are there voluntarily accepted by the owner. It rests upon the basis of a new contract which the law implies.

Now, in the present case, there is no pretence that the cargo was accepted by the owner at the intermediate port, where, from necessity the voyage was arrested, nor was it received until it was taken by the “Marengo” to New Orleans, the port of destination.

¥e are of opinion that the plaintiff is not entitled to recover, and order that the judgment be affirmed.

Judgment affirmed.  