if the deterioration has proceeded from natural decay, or from the great diminution of price that takes place at the end of particular seasons, as in figs, grapes, and herrings, after Easter; or by reason of an over-abundant supply of the market, as in corn, wine, or salt, although in salt a different practice formerly prevailed, which is contrary to reason, if the option has not been reserved by an express clause in the charter-party:' Guidon, ch. 7, art. 7, 10. In the very next article (11), however, of the treatise, we find this doctrine,—'If goods contained in casks, as wine, oil, olives, molasses, and others of the like sort, have leaked to such an extent that the casks are empty, or nearly empty, the merchant may abandon them for the freight before they are landed. Therefore, masters should take care, when they receive casks, to see that they be well hooped, and in good condition. It is true, that, if, by tempest, the casks have been so pressed that they have thrown out their bottoms, have been beaten in, and burst, provided there have been no fault in the stowage, the loss shall be an average against the insurers, the master shall lose his freight.' From the words of this article *651] *it appears very clearly, that in the opinion of the author, the merchant might abandon articles of this description, although the leakage were not occasioned by perils of the sea. In the work of Molloy, however (Book 2, c. 2, § 14), we find the following clauses: If freight be taken for one hundred tons of wine, and twenty of them leak out, so that there is not above eight inches from the bulge upwards, yet the freight becomes due: one reason is, because from that gauge the King becomes entitled to custom; but, if they be under eight inches, by some it is conceived to be then in the election of the freighters to fling them up to the master for freight; and the merchant is discharged. But most conceive otherwise; for, if it had all leaked out (if there was no fault in the master), there is no reason the ship should lose her freight, for the freight arises from the tonnage taken: and, if the leakage was occasioned through the storm, the same perhaps may come into an average. Besides, in Bordeaux, the master stows not the goods, but the particular officers appointed for that purpose; quod nota. Perhaps a special convention may alter the case. The French Ordinance (a) declares 'that the merchant shall not oblige the master to take for his freight goods diminished in price, spoilt, or deteriorated by their own vice or by the peril of the

And the very next article is as follows,-'If goods put into casks, as wine, oil, honey, or other liquors, have leaked out to such an extent that the casks are empty, or nearly empty, the merchant may abandon them for the freight.' Valin, in his commentary on this last article, observes, that it is taken from the article of the Guidon which I have just before quoted. He observes also, that, by the Consolato del Mare, ch. 202, the contrary is decided; yet that, by an*652] other article of the same code, ch. 234, freight is not due for pottery unless it is found entire at the end of the voyage: and he con siders this article of the ordinance to give the right of abandonment to the merchant in the case of leakage happening as well from the fault of the casks as from the perils of the sea, and to be an exception to the general rule laid down in the article immediately preceding.

(a) Liv. 3, tit. 3, Fret, art. 25 and 26. Those articles are repeated in the Code de Commerce, art. 310.

On the other hand, his countryman, Pothier, controverts this opinion, and contends that the article of the ordinance is to be confined to the case of leakage occasioned by peril of the sea; in which case he considers the real commodity, viz. the contents of the casks, to be absolutely lost, as much as if they had been washed overboard. This opinion of M. Valin,' says he, appears to me to be contrary to principles. It is the fault of the merchant if he has put his goods into bad casks: it is his fault if they have leaked out, and have not arrived at the place of destination. He therefore ought to pay the freight; for, according to the principles of the contract of hiring, the hirer who by his own act or fault has not enjoyed the thing let to him, ought to pay the hire as if he had enjoyed it. If the lettor, who has been prevented from letting to other persons the part of his vessel occupied by the bad casks, should not be paid the freight, he would suffer for the fault of the hirer, which is unjust:' Traité de Charte-partie, num. 60. This argument of Pothier may show what ought to have been established by the ordinance, but it by no means proves that the interpretation given by Valin, and which agrees with the terms of the Guidon, is not the true interpretation. The rule was probably introduced in early times, to prevent disputes and litigation; and adopted by the framers of the French Ordinance for the same reason." In 3 Kent's Commentaries 224 (10th edit. 313), it is said: "When

the goods become greatly deteriorated on the voyage, it has [653

been a very litigated question whether the consignee was bound to take the goods and pay the freight, or whether he might not abandon the goods to the master in discharge of the freight. Valin and Pothier entertained opposite opinions upon this question. The former insists that the regulation of the ordinance, holding the merchant liable for freight on deteriorated goods, without the right to abandon them in discharge of the freight, is too rigorous to be compatible with equity. He says the cargo is the only proper fund and pledge for the freight, and that Casaregis (Disc. 22, n. 46, and Disc. 23, n. 86, 87) was of the same opinion. Pothier, on the other hand, was against the right of the owner to abandon the deteriorated goods in discharge of the freight; and this is the better opinion, and the one adopted in the case of Griswold v. The New York Insurance Company, 3 Johns. 321. It is in accordance with the Ordinances of the Marine, and of Rotterdam, and with the new commercial code of France: and the latter puts an end to all further doubt and discussion on the subject in France. The shipowner performs his engagement when he carries and delivers the goods. The right to his freight then becomes absolute, and the carrier is no more an insurer of the soundness of the cargo as against the perils of the sea, or its own intrinsic decay, than he is of the price in the market to which it is carried. If he has conducted himself with fidelity and vigilance in the course of the voyage, he has no concern with the diminution of the value of the cargo. It may impair the remedy which his lien afforded, but it does not affect his personal demand against the shipper." In Parsons on Maritime Law, 215, it is said: "It has been made a question whether, at the port of ultimate destination, if the goods arrive [*654 *so injured as to have lost their mercantile value, the shipper may not then abandon them to the master and pay no freight. We

consider it, however, quite settled as the law of this country (Ame rica), that, if the goods arrive in specie, the shipper must pay freight for them, whatever be their condition or value. If that value has been lost or diminished by the fault of the master, or without his fault, but from a cause for which he is responsible, then, as we have repeatedly said, the shipper may claim compensation; but he must pay freight." Reference is made in a note to the case of Luke v. Lyde, 2 Burr. 882, 887, for a dictum of Lord Mansfield to the effect that the merchant may by abandonment excuse himself from freight: but it is said that that doctrine has not been followed in America. The same view is adopted in Benecke on Marine Insurance 13. The underwriter on freight is not bound to pay if the goods arrive in specie, though deteriorated, because the freight is not in that case lost. The court will only have recourse to foreign codes and to foreign jurists to aid their judgment where there is no common-law principle to guide them. But here there is a common-law principle, viz. that the merchant shall pay freight; and that, if the goods have through any negligence or default on the part of the master or crew become deteriorated, he has his remedy by a cross-action. The principle before adverted to, which allows a defendant in an action for the price of goods, or for work and labour, to show that the goods or the work were by reason of the plaintiff's default of decreased value, is said by Parke, B., in Mondel v. Steel, 8 M. & W. 858, 871, not to have been extended to an action for freight,-Sheels v. Davies, 4 Campb. 119. And see Allen v. Cameron, 1 C. & M. 832. In Parsons on Contracts *655] 388, it is said: "Perhaps no better rule can be *given, than that, if the thing to be done be in its own nature separable and divisible, and there be no express stipulation or necessary implication which makes it absolutely one thing, and that part which fails may be regarded, to use the language of the court in one case (Lucas v. Godwin, 3 N. C. 746, 4 Scott 502), 'not as a condition going to the essence of the contract,' in such case the failure does not destroy the rights growing out of the performance of the residue. But the other party may have his claim or action for damages arising from such. failure." To hold such a plea as this to be good, will unsettle the whole law upon the subject.

Brett, Q. C., contrà.(a)-The point now before the court is entirely new, and has never yet been decided in any court. The plea is framed upon the views *suggested in Maclachlan on Shipping, p. 398 et seq. [WILLES, J.-Does this plea raise the question? It

*656]

(a) The points marked for argument on the part of the defendant were as follows:"1. That, where the goods are so deteriorated from the fault of the master or mariners during the voyage as not to be worth the freight, the merchant is entitled to abandon the goods, and is absolved from payment of the freight :

"2. That, where there is such a degree of deterioration from such a cause, the shipowner has so completely failed in the fulfilment of the contract upon which freight is claimed, that, if the merchant refused to receive the goods, no freight is payable:

3. That, in such a case, it is clear that the merchant can derive no benefit whatever from the conveyance of the goods; but, in order to exclude any presumption or possibility of benefit, he abandons the goods for the freight:

"4. That, in such a case, the shipowner, although not able to enforce the claim for freight against the merchant, is not bound to part with the goods without payment of the freight; and the effect of the abandonment is, to exonerate the shipowner from the keeping or delivery of the goods, and to place them absolutely at his disposal."

does not allege that the cargo was not of mercantile value when the ship arrived at Nassau; but merely that it was of less value than the amount of the freight.] It is not denied, that, if any part of the cargo is accepted, any claim which the shipper may have in respect of negligence of the master and mariners must be the subject of a crossaction; nor is it contended, that, if any part of the goods arrive in specie so as to entitle the shipowner to freight, the underwriters on freight would be liable, or that, if the cargo has sustained injury through the negligence of the master and mariners to an extent short of rendering it worthless, the shipper would be excused from payment of freight. But the allegations in this plea go to show, that, in a mercantile sense, the cargo had through the negligence and mismanagement of the master and mariners become of no value. [WILLES, J.-It is in effect a plea of evidence. That evidence may or may not sustain the allegation that the cargo became valueless.] It could not probably have been alleged here that the cargo,-coals,—had been rendered utterly valueless. [WILLIAMS, J.-Is it not consistent with this plea that the coals were worth 2531. 2s. 6d., and that they were damaged to the extent of 6d. ?] If that were so, the adventure has become worthless. Unless the merchant can sell the cargo for the cost-price plus the freight and charges, the adventure is lost. And, if that result is brought about by the negligence of the master and crew, why is he to pay freight? The allegation as to the abandonment was merely put into the plea for the purpose of negativing the acceptance of part of the cargo. In Maclachlan, p. 398, it is said,"It may happen that goods existing in specie when brought to the place of destination, are so deteriorated in condition as not to [*657 be worth the freight; and then arises the question whether the merchant is bound to pay freight, or is at liberty to abandon the goods to the shipowner for his claim. Upon this question, although different doctrines have prevailed among jurists, there is no judicial decision as yet in our books. In considering it, the causes from which the deterioration in the merchandise may proceed, should be distinguished. If it proceeds from the fault of the master or mariners, the merchant is entitled to a compensation, and may recover it by an action at law against the owners or master; but, if he has received the goods, he cannot insist upon the damage as a defence to such an action brought against himself for the freight,-even although he has offered to return them." The learned author, after referring to Garrett v. Melhuish, 4 Jurist, N. S. 943, proceeds,-"On the other hand, if it proceeds from an intrinsic principle of decay naturally inherent in the commodity itself, whether active in every situation, or only in the confinement and closeness of a ship, the merchant must bear the loss and pay the freight; the master and owners are in no fault, nor does their contract contain any insurance or warranty against such an event." He then refers to Le Guidon, c. 7, articles 10 and 11, the Consolato del Mare, cc. 160, 192, Molloy, Book 2, c. 4, § 14, Valin, liv. 3, tit. 3, art. 26, Pothier, Traité de Charte-partie, No. 60, and to the Ordinance of Rotterdam, and says,-"To the same effect Lord Mansfield, in Luke v. Lyde, 2 Burr. 882, 887, is reported to have said, that, 'as to the value of the goods, it is nothing to the master whether the goods are spoiled or not, provided the merchant takes them: it is

enough if the master has carried them; for, by doing so, he has earned his freight; and the merchant shall be obliged to take all that are saved, or none; he shall not take some, and abandon *the rest,

*658] and so pick and choose what he likes, taking that which is not damaged, and leaving that which is spoiled or damaged. If he abandons, he is excused freight; and he may abandon all, though they are not all lost.' But this must be received as an extra-judicial opinion of his Lordship, as the question of abandonment was not in issue in that cause: in fact, the goods had not been carried to the place of destination, but the vessel, which was bound for Lisbon, having been captured, and re-captured, was carried with the goods into a port in Devonshire, and there the merchant received them. In Lutwidge v. Gray, cited in Luke v. Lyde, it seems to have been taken for granted by the counsel on both sides that the merchants might have abandoned the whole cargo: but, in that case, the ship was wrecked, and the goods saved at great expense, at a place short of the port of delivery; and the right of abandonment is spoken of with reference to the situation of the goods at that place. Most certainly, the merchant cannot be compelled to accept his goods at any other place than the place of destination: even if the master should pay the salvage, and convey them to that place, the merchant may be allowed to have his option of accepting them or not, loaded with the additional expense of salvage. And accordingly, in another case (Baillie v. Moudigliani, 1 Park Ins. c. 2, p. 116), Lord Mansfield said, 'The owner of the ship has a lien for freight; but, in a total loss, literally so called, no freight is due; in case of a loss total in its nature, with salvage, the merchant may either take the part saved or abandon.'" He then refers to Griswold v. The New York Insurance Company, 3 Johns. 321, which seems to show, that, by the American law, where any part of the cargo arrives in specie, the rest being destroyed or worthless through no default of the master and crew, the merchant must pay freight. But, add the fact that the loss arose from negligence *659] of the master and crew, and the case would be different. [WILLES, J.-Griswold v. The New York Insurance Company, was cited by Mr. Quain in Blasco v. Fletcher, 14 C. B. N. S. 147 (E. C. L. R. vol. 108), and also a subsequent case of M'Gaw v. Ocean Insurance Company, 23 Pickering 405, where Chief Justice Shaw, speaking of the cases where the shipowner is entitled to freight notwithstanding the ship has been compelled to put into an intermediate port to refit, says, -Nor does it make any difference, if the cargo is damaged and unfit to be shipped, if it remains in specie, and can be carried to the port of destination; as the shipowner is not responsible for the damaged condition of the goods, whether such damage arise from a principle of internal decay or from perils of the sea. In such cases, it is held, that, as between the shipper and shipowner, the latter is entitled to his freight although the goods have become utterly worthless, and that he has his remedy for his freight, not only by a lien upon the goods (which in the case supposed would avail him nothing), but also by an action against the shipper on his contract of carriage." Those cases, however, leave untouched the present question.] The reasoning in those cases almost necessarily implies that the present argument is ll founded. [WILLES, J.-Where the cargo has become utterly