112
AFFREIGHTMENT
exceptions in the bill of lading. Freight, unless it is otherwise provided by the contract, is payable only on delivery of the goods at their destination. If the voyage is interrupted and its completion becomes impossible, the shipowner cannot claim payment of freight even 'pro raid itineris. He loses his freight altogether. This is so even when the completion of the voyage is prevented by causes for which the shipowner is not responsible, such as the act of God or the King’s enemies, or perils which are within the express exceptions in the bill of lading. When the voyage is interrupted by accident, and indeed in any case, the goods may, by agreement between the shipowner and the consignee, be delivered at some place short of their destination upon payment of a freight pro rata ; that is to say, proportional to the length of voyage accomplished, and such an agreement may be implied in certain circumstances from the conduct of the consignee in taking delivery before they arrive at their destination. In all such cases it will be a question of fact whether the goods were in fact delivered upon the terms, express or implied, that freight pro raid should be paid. As a rule such an agreement would not be implied where the shipowner is unable or unwilling to forward the goods to their destination, and the owner of the goods, therefore, has no option but to take delivery of them there. When the ship is disabled and cannot proceed, or she is prevented by some obstacle from proceeding to the place of delivery named in the bill of lading, and the shipowner is unwilling or unable to forward the goods by another ship, even though he may be excused for his failure to carry the goods to their destination, he is not entitled to be paid any part of the freight; and the consignee is entitled to have the goods delivered to him either at the place where the vessel has taken refuge in her disabled condition, or, if the obstacle arises without disablement of the vessel, at the place which is nearest and most reasonably convenient at the time and in the circumstances when the further prosecution of the voyage has to be abandoned. On the other hand, after the goods have been shipped, so long as the shipowner is ready and willing to carry the goods to their destination, or, if the ship is disabled, to forward them to their destination by some other ship without unreasonable delay, the owner of the goods cannot require the goods to be delivered to him at any place short of their destination without payment of the full freight. Sometimes the freight, either wholly or in part, is made payable in advance. If freight payable in advance has become due, even though the ship is lost before it is paid, it must, in the absence of some special provision to the contrary, still be paid, and freight already paid in advance does not become repayable because the goods do not reach their destination. If, however, goods upon which freight has been paid in advance are lost, and the shipowner is liable for their loss, the amount of freight paid in advance must be taken into account in assessing the damage recoverable from the shipowner. (8) There is no part of the bill of lading which is of greater practical importance or which demands more careful consideration by shipowner and shipper alike than that which sets forth the excepted perils; those perils, in other words, or causes of loss for which the shipowner is to be exempt from liability. By the common law, as we have seen, the exemption of the carrier, apart from express contract, extended only to loss by the act of God or the King’s enemies. The expression “ act of God ” requires a word of explanation. It will be sufficient to say that it is not synonymous with force majeure; but it includes every loss by force majeure in which human agency, by act or negligence, has had no part. The list of excepted
[bills of lading
perils varies much in different forms of bills of lading. In the older forms it usually included perils of the seas, robbers and pirates, restraint of princes and rulers, fire and barratry (that is, wilful wrongdoing) of the master and crew. The list, however, has grown in modern times, and is still growing; the tendency being to exempt the shipowner from liability for all loss which does not arise from his own personal default, or from the negligence of his managers or agents in failing to provide a vessel seaworthy and fit for the voyage at its commencement. It is important to point out in this connexion that there are two duties which the shipowner is always presumed to undertake, and which are assumed to be unaffected and unqualified by the exceptions, unless a contrary intention is very clearly expressed by the terms of the contract. In the first place, he undertakes absolutely that the ship in which the goods are shipped is fit at the commencement of the voyage for the service to be performed. If during the voyage loss arises even from dangers of the seas or other excepted peril which would not have occurred if the vessel had been seaworthy and fit for the voyage at its commencement, the shipowner is not protected by the exceptions, and is liable for the loss. In the second place, there is an implied undertaking by the shipowner that all reasonable care will be taken by himself, his servants, and agents, safely to carry and deliver at their destination the goods received by him for carriage. Should loss or damage occur during the voyage, though the direct cause of such loss or damage be perils of the seas or other excepted peril, still the shipowner cannot claim exemption under the exceptions, if the shipper can prove that the loss or damage would not have occurred but for the negligence of the master, or crew, or other servants of the shipowner. The shipowner, in other words, is bound by himself and his servants to use all reasonable care to prevent loss by excepted perils as well as by any other cause. It must not be supposed that even these primary obligations, which are introduced into every contract of affreightment not by words but by implication, may not be excluded by the „ express terms of the contract. It has now become p^ . . common form to stipulate that the shipowner shall not be liable for any loss arising from the negligence of his servants, or that he shall not be liable for loss by the excepted perils even when brought about by the negligence of his servants. And with regard to seaworthiness, it is not uncommon for the shipowner to stipulate that he shall not be responsible for loss arising even from the unseaworthiness of the ship on sailing, provided that due care has been taken by the owner, and his agents, and servants to make the ship seaworthy at the commencement of the voyage. There is indeed no rule of English law which prevents a shipowner from exempting himself by the terms of the bill of lading from liability for damage and loss of every kind, whether arising from unseaworthiness or any other cause whatsoever. In such a case the goods are carried at the owner’s risk, and if he desires protection he must obtain it by insurance. In this respect the law of England permits greater freedom of contract than is allowed by the law of some other states. The owners, agents, and masters of vessels loading in the United States of America are forbidden by an Act of Congress, commonly called the Harter Act, passed in the year 1893, to insert in their contracts of affreightment any clause exempting the shipowner from liability for the negligence of his servants ; but it is at the same time enacted that, provided all reasonable skill and care has been exercised by the shipowner to make the vessel seaworthy and fit for the voyage at its commencement, the shipowner shall not be liable for any loss caused by the negligence of the master or crew in the navigation of the vessel, or by perils of the sea or certain other causes set forth in the Act. It is now very usual to insert in the bills of lading of British vessels loading in the United States a reference to the Harter Act, incorporating its provisions so as to make them terms and conditions of the bill of lading. The difficulty of construing the terms of bills of lading with regard to the excepted perils, often expressed in obscure and inexact language, has given rise to much litigation, the results of which are recorded in the Law Reports. Where such difficulties arise the question must be, What is the true and natural meaning of the language used by the parties ? This question is not governed by the general rules which we have endeavoured to explain ; but the words of the contract must always be considered with reference
