Case where freight earned ship. the cargo: it is in fact a part of the operation of saving The cost of loading the cargo on board the ship, however, in such a case, always is, in practice, a charge upon the freight (d). Supposing, in the second place, that the ship is not by substituted floated or raised, or is found not capable of repair so as to carry the cargo, and the shipowner avails himself of his privilege of substituting another ship, and sends it to the nearest port to fetch the goods, it seems obvious that the same principle should apply: the cost of bringing the goods to the port should be a charge on the cargo and freight, and the cost of loading the goods should be a charge on the freight alone. Ship left derelict. § 43. It must be borne in mind, however, that the shipowner's position as to freight may be materially affected by the crew's abandoning the ship during the voyage; as, for instance, by their taking to the boats, or otherwise leaving the ship to save their lives. In the (c) Per M. Smith, J., in Walthew v. Mavrojani, L. R. 5 Exch. 116; ante, p. 167. (d) Whether this is right in theory, I do not here discuss. The question is, no doubt, closely connected with that considered in Svendsen v. Wallace (see post, Chap. V.), where the cargo has been landed for the common safety but here, where the cargo has been taken out for its own safety merely, it is certainly not a matter of course that the conclusion would be the same as in that decision. The present practice, however, unquestionably is to treat the cost of reloading as a charge on freight. case of The Kathleen, this ship, laden with a cargo of cotton bound for Bremen, was run into, in the English Channel off Hastings, by a vessel called The Mallowdale, which cut her down and did great damage to her. For this collision The Mallowdale was solely to blame. Next morning the master and crew of The Kathleen justifiably abandoned her, she having become unmanageable, and they went on board The Mallowdale. Subsequently The Kathleen was boarded by salvors, and taken into Dover, where the ship and cargo were arrested under Admiralty process for salvage. Thereupon the owners of the cargo applied for an order of the court to have the cargo, which was alleged to be deteriorating in value, sold on the spot. The owners of the ship objected to this course, and claimed to set aside this application, asking the court, on the contrary, either to order that the owners of The Kathleen should be allowed, on giving bail in the salvage suits for the cargo, to carry the cargo on to its destination in order to earn freight, or to order that, if the cargo were sold at Dover, the amount of freight should be paid out of the proceeds. The court first ordered the removal of the cargo to London for sale, this being the best course in the interest of the cargo itself, it being too badly damaged to bear the delays of a voyage to Bremen. As to the claim for freight, Sir R. Phillimore decided that there was none. owner," said the learned judge, "had abandoned all possession of the ship, and at the time of abandonment had certainly lost all rights to freight or to carry on the cargo" (e). "The In the case of The Cito, a Norwegian ship, the decision was much to the same effect. This vessel, with a cargo (e) The Kathleen, L. R. 4 A. & E. 269, at p. 277. of resin in barrels, bound to Rotterdam, was, owing to the perils of the sea, abandoned by her crew off the American coast, picked up by salvors, carried into Plymouth, and there arrested by the salvors. The owners of the cargo, as in The Kathleen's Case, claimed the right to settle with the salvors, and take delivery of their cargo without payment of freight. This the shipowners resisted, and the question between them was carried to the Court of Admiralty. That court considered itself bound by the precedent of The Kathleen, and gave judgment in favour of the cargo. This was appealed against, but the Court of Appeal confirmed the judgment. Brett, L. J., said: "Many interesting points have been discussed in this case about which it is not necessary to give any decided opinion. It has been said that such an abandonment of a ship as to make it a derelict, together with a subsequent seizure by any one who finds it, makes such seizure the seizure of a droit of the Admiralty, and alters the property in the ship. If that were made out, it would strongly support the case for the respondents; but I am not, however, prepared to say that such a proceeding would take the property in the ship out of the owner; and for the present purpose I will assume that it does not. It has been also urged that the abandonment of a ship puts an end to the contract of affreightment. I am not prepared to say it does. Suppose a wrongful abandonment, without its being occasioned by the perils of the sea, it is clear that in that case the owner of the cargo might sue the shipowner for his breach of contract, so it cannot be said that it puts an end to the contract of affreightment. It is sufficient, I think, for the determination of the present case, to say that by the abandonment of a ship without any intention to retake possession of it, the shipowner has, so far as he can, abandoned the contract, so as to allow the other party to it, the cargoowner, to treat it as abandoned." The learned judge proceeded to point out that, before the owners of The Cito had taken any action, and while, therefore, the cargo-owners were entitled to treat the contract as abandoned, these cargo-owners had demanded possession of their own property, expressing their readiness to satisfy the salvors' lien. "We do not decide," he added, "what would have been the result if, after the ship had been brought in as it was by the salvors, and before the cargo-owners had come in and exercised their right to the cargo, the shipowners had given bail for the ship and cargo, and had carried the cargo on” (ƒ). Cotton and Lindley, LL.J., concurred. (f) The Cito, 7 P. D. 5, at p. 8. 45. Former state of practice in this country, and earlier decisions 184 . 214 49. Conclusion: effect of these two decisions.. DIV. II.-APPLICATION TO DETAILS. 50. Mixed cases: bearing up partly for sacrifice, partly for accidental damage... 51. At what point safety is attained 52. Discharging cargo .... 53. Re-loading charges, when freight is prepaid 219 220 222 224 54. Admitted cases where cost of reloading is general average.. 225 Statement of the general question. § 44. Next to salvage charges, or the expenditure incurred in saving a ship and cargo from wreck, raising them when sunk, floating them when stranded, or otherwise rescuing them from imminent total loss-if not even before these in importance, on account of its greater |