occurs whether any freight is due if the vessel safely performs the outward voyage and delivers her cargo, but is lost before her return home. It is perhaps impossible to give any general rule which shall always answer this question, because each case must be judged of by itself; and these cases, as they are presented in the books, often involve questions of mingled fact and law which are sometimes of great difficulty. There is nothing to prevent the parties from making such a bargain on this point, as they choose to make. They may say distinctly, that so much freight shall be paid if she performs one passage in safety, so much if another, and so on for the rest; or they may agree that nothing shall be payable by way of freight, unless she performs all of them, and brings the last cargo home in safety. And the question always is, which of these two things did they mean to express by the words which they used. There is perhaps some tendency in the courts to look upon such voyages as distinct, especially if the shipper or charterer derives a distinct benefit from each voyage, and receives his goods at the end of each with their value enhanced by the carriage; and in such a case, nothing but plain language, providing that no freight shall be earned unless the whole voyage or all the passages be duly performed, would suffice to destroy the owner's claim for freight pro ratâ.1 rata.1 The vessel may be hired on time only, and freight is then The law is stated by Lord Mansfield as follows: "If there be one entire voyage out and in, and the ship be cast away on the homeward voyage, no freight is due, no wages are due, because the whole profit is lost; and by express agreement the parties may make the outward and homeward voyages one. Nothing is more common than two voyages; whenever there are two voyages, and one is performed, and the ship is lost on the homeward voyage, freight is due for the first." Mackrell v. Simond, 2 Chitty, 666. See also Molloy, de Jure Mar. Book 2, ch. iv. § 9; Malynes, p. 98. In the following cases it was held that the voyages were distinct, and freight was payable for those performed. Mackrell v. Simond, supra; Brown v. Hunt, 11 Mass. 45; Locke v. Swan, 13 Mass. 76. In the case of Towle v. Kettell, 5 Cush. 18, the charter-party described the voyage from Boston to Wilmington, N. C., and from thence to Cape Haytien in the island of Hayti, and from thence back to Boston. The clause relative to the payment of freight was as follows: " for the charter or freight of the said vessel during the voyage aforesaid, in the manner following, that is to say, fifteen hundred dollars, say so much in Hayti as the master may want for the disbursement of the vessel, and the balance on the discharge of the cargo in Boston, together with all port-charges, lighterage, and pilotage in Hayti." The master to be paid at the times specified, and each stipulated period of payment is considered as a separate voyage. And where, in such a case, freight is to be paid at a certain rate per month, and "at the same rate for any part of a month," it is considered as earned till the time of the loss of the vessel.2 As it is the owner's duty (unless otherwise stipulated) to keep the ship in good repair, he not only may, but must, use sufficient time for that purpose; and during that time the charterer pays as for any other part of the period for which he hires the ship.3 And if the charterer has possession of her, it is his duty to see that she is kept in repair, although the owner be ultimately liable to him for the expense. He must not abandon the ship as long as she is seaworthy, or can be kept so, or made so by any reasonable efforts. And if the owner retains possession, the charterer must not take his goods out, or abandon the voyage, so long as the owner can keep her or make her fit for the voyage, unless he distinctly refuses, by word or act, to do so.4 was to have what freight could be got from Boston to Wilmington. The vessel was lost on her return voyage from Hayti to Boston. The court held that the voyage was an entire one, and that no freight was due, that the provision for paying the master at Hayti what he might want for the disbursements of 'the vessel could not affect the construction of the instrument. In the following cases also, the voyages were held to be entire: Byrne v. Pattinson, in K. B. Trinity Term, 37 Geo. 3, Abbott on Ship. 466; Smith v. Wilson, 8 East, 437; Coffin v. Storer, 5 Mass. 252; Liddard v. Lopes, 10 East, 526; Scott v. Libby, 2 Johns. 336; Barker v. Cheriot, 2 Johns. 352; Penoyer v. Hallett, 15 Johns. 332; Burrill v. Cleeman, 17 Johns. 72; Blanchard v. Bucknam, 3 Greenl. 1; Hamilton v. Warfield, 2 Gill & J. 482. See also Gibbon v. Mendez, 2 B. & Ald. 17; Crozier v. Smith, 1 Scott, N. R. 338; Sweeting v. Darthez, 14 C. B. 538, 25 Eng. L. & Eq. 326. 1 Havelock v. Geddes, 10 East, 555. Ripley v. Scaife, 5 B. & C. 167. * M'Gilvery v. Capen, 7 Gray, 525. Havelock v. Geddes, 10 East, 555; Kimball v. Tucker, 10 Mass. 192. In this case it was held that where the vessel became unseaworthy during the voyage, the hirer could not stand still calling for repairs, but must provide whatever was necessary, at the expense of the owner, to enable the vessel to complete her voyage. Sewall, J., on page 196, said: "If the vessel, sufficient at the commencement of the voyage, be entirely lost in the course of it, the one must betake himself to another vessel, and the other loses his freight-money, but nothing more, upon the contract of charterparty. The hirer must not abandon the vessel while he can keep her afloat and suitably provided for the employment and destination for which she was hired: and the owner must be ready to pay all expenses and damages necessarily in If there is a deviation by the vessel from the voyage agreed on, which is authorized by the agent of the charterers, they are liable to pay the stipulated price.1 SECTION V. OF DEMURRAGE AND LAY DAYS. In all commercial and maritime affairs, time is an element of great value and importance. It should follow, therefore, that both parties should be punctual. If the ship is not ready when she should be, but a material delay seems to be probable, the charterer may seek another ship; if the cargo be not ready, the owner may seek another cargo. If a vessel is chartered to load at a foreign curred for the purpose." In The Agricultural Bank v. Barque Jane, 19 La. 1, it was held, that where a vessel was chartered and put up as a general ship by the charterers, the shippers of goods could not maintain an action against the owners for damage done to their goods through the unseaworthiness of the ship, but that their action was against the charterers, though they in turn might recover from the owners whatever they might have to pay. 1 Baker v. Pratt, 4 Allen, 158. Thus in Weisser v. Maitland, 3 Sandf. 318, the charter-party provided that the charterer should be allowed for the loading and discharging of the vessel as follows: "Lay days, to load, twenty days from the twelfth." The owner guaranteed to have the vessel ready by that time. The charter-party was to commence when the vessel was ready to receive her cargo, and notice thereof given to the charterer. It was held, that the vessel's being ready on the day named was a condition precedent to the charterer's liability to put on board the cargo. The court said: "Time was of the essence of the contract, and it is often so in commercial transactions. The success of the enterprise often depends upon dispatch. It was plainly the intent of these parties to be ready by the twelfth of April at all events. The cases show that the great principle to be considered is the intent of the parties, and where the time is essential, and the words of the charter-party are plain, as in the case here, we cannot doubt that the agreement, in reference to the day when the vessel was to be ready, is to be regarded as a condition precedent." See also Seeger v. Duthie, 8 C. B. N. s. 45; Shadforth v. Higgin, 3 Camp. 385; Glaholm v. Hays, 2 Scott, N. R. 471; Shubrick v. Salmond, 3 Burr. 1637; Soames v. Lonergan, 2 B. & C. 564; 2 Parsons on Contracts, 5th ed. 660. It was held in Pope v. Bavidge, 10 Exch. 73, 28 Eng. L. & Eq. 569, that, where it was agreed that the ship should make six successive voyages, and that they should not be made later than the last day of February, 1853, a plea that during three voyages the ship sustained great damage from the dangers of the port and to proceed thence with the cargo to one of several other ports, it has been held that the master need not communicate with the charterer, and if orders are not sent within a reasonable time, he may proceed to either of the ports mentioned.1 The ship-owner must perform the voyage in as short a time as is consistent with safety, and for any loss sustained by the charterer in consequence of the voyage being protracted by any culpable act of commission or omission, the owner is liable.2 The charterer must load and unload with all reasonable despatch; and the owner must give him all reasonable facilities; and for non-performance of these obligations, on either side, the injured party may have his remedy, without any express stipulations.3 If there be an express contract in relation to these obligations, the parties are held strictly to its terms, and, generally speaking, no excuse is available for delay, though without the fault of the party, which is not given by the contract itself. But in the absence of an express agreement, there is an implied contract that the owner and consignee of the goods will provide for discharging them in a reasonable time; and it has been held that this time is for the jury to ascertain, upon a consideration of all the circumstances.4 It is usual, however, to provide for all obligations of this kind. under the name of Demurrage. Sometimes it is provided that the ship shall be ready on a certain day, and if not, the charterer shall be allowed so much for every day that he is delayed. More often, and, indeed, almost always, it is provided that the charterer may have so many days for loading and for unloading the ship, and that he may detain her more, if he will pay so much for each additional seas, which damage was necessary to be repaired before the ship could proceed on her fourth voyage, and this could not be done before the last day of February, 1853, had elapsed, was no answer to an action for a breach of the contract. 1 Sieveking v. Maass, 6 Ellis & B. 670, 36 Eng. L. & Eq. 185. Affirmed in the Exchequer Chamber, 6 Ellis & B. 674, 36 Eng. L. & Eq. 187. The Bark Gentleman, Olcott, Adm. 110, 1 Blatchf. C. C. 196. See Sweeting v. Darthez, 14 C. B. 538, 25 Eng. L. & Eq. 326; Harris v. Dreesman, Exch. 1854, 25 Eng. L. & Eq. 526; Clendaniel v. Tuckerman, 17 Barb. 184. 4 In Cross v. Beard, 26 N. Y. 85, the doctrine above stated was asserted; and the consignee of goods to be discharged at his own wharf on Lake Ontario, was permitted to explain and excuse his delay in giving a berth to the ship, by proof that a break on the Erie Canal, and a storm on the lake, had caused an unusual number of vessels to be collected at his wharf before the arrival of his goods. day, or that if he detain her longer, he shall pay so much. If the whole charter be on time, there is no need of these provisions. If it be for a voyage or voyages, then these days, for which he pays nothing, are a part of the voyage. They are called lay days, and all belong to the charterer; he is under no obligation to receive the cargo until it suits his convenience, provided he do not exceed the specified number of the lay days for unloading; and if he does not receive it, and in the meanwhile it is lost by a peril of the sea, there is no delivery of the goods, no completion of the voyage, and no freight earned. Nor is the charterer bound to furnish a cargo as soon as requested by the captain, but he can load it any time within the lay days.2 If it is stated in the bill of lading that demurrage is to be paid, the reception of the goods by a party, under such a bill, would be evidence of an agreement on his part to pay the prescribed demurrage; without this clause in the bill, however, there is no claim on the consignee for demurrage as such, although there may be a claim for damages caused by delay.* 1 Lacombe v. Waln, 4 Binn. 299; Brown v. Ralston, 4 Rand. 504, 9 Leigh, 532. 2 See ante, cases cited p. 296, note 2. 460. 3 Jesson v. Solly, 4 Taunt. 52; Harman v. Gandolph, Holt, N. P. 35; Harman v. Clarke, 4 Camp. 159; Harman v. Mant, id. 161; Stindt v. Roberts, 5 Dowl. & L. In Wegener v. Smith, 15 C. B. 285, 28 Eng. Law & Eq. 356, it was held that it was a question for the jury, whether an indorsee of a bill of lading was liable for demurrage, who received goods under a bill of lading which stated the cargo to have been received "against payment of the agreed freight, and other conditions as per charter-party," and the charter-party contained a provision for demurrage. See also Smith v. Sieveking, 4 Ellis & B. 945, 30 Eng. L. & Eq. 382, s. c. affirmed in the Exchequer Chamber, 5 Ellis & B. 589, 34 Eng. L. & Eq. 97. It was held in this case that a bill of lading, by which goods were deliverable to the consignees, "they paying for the said goods as per charter-party," imposed no liability on the consignees to pay demurrage, according to the charter-party, for a detention of the ship at the port of loading which occurred before the bill of lading was signed. In Chappel v. Comfort, 10 C. B. N. s. 802, sixteen days were allowed by the charter-party for loading and unloading, and £2 per day were to be paid for any detention beyond. By the bill of lading the cargo was deliverable to the consignees in London, "he or they paying freight as per charter-party." There was also the following memorandum on the bill of lading: "There are eight working days for unloading in London." Held that the consignees, by accepting the cargo under this bill of lading, were not bound to pay demurrage. "De Gage v. Morse, 12 Allen, 410; Young v. Moeller, 5 Ellis & B. 755. murrage," so called, can be recovered only where it is reserved by the charterparty or bill of lading. The remedy, where no such express reservation exists, |