account of the accident that happened to the ship. He might lawfully have insisted upon detaining the goods while the repairs could have been made, which it seems to us could have been made in a reasonable time.' The case of Allen v. Insurance Co., 44 N. Y. 437, is peculiarly in point. The vessel in that case was stranded, and afterwards prevented from completing her trip by the ice. The case is, if anything, stronger than the one at bar, for the court said that but for the detention by stranding she would have been able to finish her voyage before cold weather could have prevented its completion. But it is by no means certain that, had the Eclipse not been temporarily detained while repairs made necessary by running upon a snag were being made, she would have succeeded in reaching Ft. Buford before the ice could have stopped her progress. She was detained only from 5 o'clock in the afternoon until 8 the next morning, and it was undisputed that she always lay by at night. Therefore little, if any, time was lost because of this accident. In the case cited the court held that the master had a right without paying freight. It has been already said that the contract of affreightment is not to be terminated at the will of one of tract of affreightment is not to be casioned by the fault of the owner or master of the ship may take place, which may operate most unpropitiously upon the merchant. Such are the delays by contrary winds, as that the best planned voyages are often frustrated. Such may be the case of an embargo. Such was the case in Palmer v. Lorillard, 16 Johns. 348, cited by the counsel in the case at bar. Palmer and others had undertaken to carry some tobacco from Richmond to New York for Lorillard, and the ship sailed upon the voyage in February, but, finding the Chesapeake blockaded, she returned to Richmond. Lorillard there demanded his goods in September, but the master refused to deliver them without being paid half his freight, and in a few days the vessel and cargo were totally lost in a storm at the wharf, and the court held in that case that the contract was only suspended by the blockade, and that the owner of the ship might detain the goods until they could prosecute the voyage in safety, unless to complete the transportation on the merchant would pay full the opening of navigation to earn freight. There the delay was his freight, and to hold the cargo three times as great as would for that purpose unless paid full have been sustained by the plain- freight by the shipper. The court tiff in the case at bar if he had said (page 443): 'Detention by the repaired his ship.' And in con- close of navigation, which is the clusion the court said: 'But we are act of God or vis major, not acsatisfied that the master lost the companied by any accident or infreight by his own act in giving jury to the vessel, does not have up the voyage. He had an inter- the effect to terminate or dissolve est in carrying the cargo which a contract of affreightment. The he was not obliged to abandon on owner or master of the vessel is not absolved from his liability to the shipper, nor can the latter demand his goods free of freight on account of the detention.' To same effect, Murray v. Insurance Co., 4 Biss. 417, where the court said: 'When a vessel takes a cargo, as in this case, in the fall of the year, to transport to a distant point, it is one of the incidents of the navigation that owing to variable weather or freezing up she may not be able to reach her port of destination.' Declaring the same principle are Hadley v. Clarke, 8 Term R. 259; McGaw . Insurance Co., 23 Pick. 405; Allen v. Insurance Co., 44 N. Y. 437-443; Hubbell v. Insurance Co., 74 N. Y. 246; Hughes v. Insurance Co., 100 N. Y. 58; 2 N. E. Rep. 901, and 3 N. E. Rep. 71; Griswold . Insurance Co., 1 Johns. 205, 3 Johns. 321; Pars. Shipp. & Adm. 231-233; Jordan v. Insurance Co., 1 Story, 342; The Nathaniel Hooper, 3 Sum. 542-559; Bradhurst v. Insurance Co., 9 Johns. 17; Insurance Co. v. Butler, 20 Md. 41. The master is sometimes bound to forward the goods by other means in case of an interruption of the voyage, instead of delaying to repair. Saltus v. Insurance Co., 12 Johns. 107; Treadwell v. Insurance Co., 6 Cow. 270; Bryant v. Insurance Co., 6 Pick. 131; Adams v. Haught, 14 Tex. 243; Schieffelin v. Insurance Co., 9 Johns. 21. "But these were all cases in which the voyage was unexpect edly delayed. In this case, both parties must have anticipated that the closing of navigation might intervene, and suspend the voyage. No time for delivery having been specified, no provision for forwarding by other means in such a contingency having been inserted in the agreement, and the contract being to ship all the way by water, it is not a case for the application of the doctrine that delay must be prevented by forwarding the goods by other conveyance. The law, in the light of these circumstances, writes into the compact an assent to such a delay. See Saltus v. Insurance Co., 12 Johns. 107; Allen v. Insurance Co., 44 N. Y. 437. It cannot be said that the master, by removing the cargo from the steamer to the river's bank, had abandoned the transportation of the goods. This was done for the safety of both the vessel and the cargo, and was essential to their safety, as it is undisputed that the risk of both from the breaking up of the ice in the spring would have been greater with the steamer loaded than with the cargo on shore. It is the undoubted duty of the master to do precisely what he did do to protect the interests, not only of the cargo, but of the owner of the boat also. 'Suppose a ship meets with a calamity in the course of a voyage, and is compelled to put into a port to repair, and there the cargo is required to be unloaded in order to make the repairs, or to insure its safety, or ascertain and repair the damage done to it, would such an unloading dissolve the contract for the voyage? Certainly not.' Per Story, J., in The Nathaniel Hooper, 3 Sum. 542-559. See also, Murray v. Insurance Co., 4 Biss. 417. We hold that full freight was earned." weather or other like event, does not dissolve the contract of carriage or justify the owner in terminating it.23 Sec. 802. (§ 445.) Entitled to freight, though the goods have become worthless, if they are delivered. But if the carrier has performed his part of the contract, and the goods notwithstanding perish from internal causes of decay, or are spoiled by reason of the perils of the sea, or become damaged or worthless from accidents or causes for the consequences of which he cannot be held liable under his contract, still, if he carries them to the port of delivery and is there ready to deliver them to the consignee upon payment of his freight, or if he is able and offers to carry them, but their owner voluntarily elects to receive them at an intermediate place, the carrier will be entitled to his full freight, although the goods, in their damaged or perishing condition, are of no value to the consignee, for which he will have his remedy against the shipper personally. "The consideration for the freight is the carriage of the article shipped on board, and the state or condition of the article at the end of the voyage has nothing to do with the obligation of the contract. It requires a special agreement to limit the remedy of the carrier for his hire to the goods conveyed. It cannot be deduced from the nature of the undertaking. The ship-owner performs his engagement when he carries and delivers the goods. The condition which was to precede payment is then fulfilled. The right to payment then becomes absolute, and whether we consider the spirit of this particular contract, or compare it with the common-law doctrine of carrying for hire, we cannot discover any principle which makes the carrier an insurer of the goods as to their soundness, any more than he is of the price in the market to which they are carried. If he has conducted himself with fidelity and vigilance in the course of the voyage, he has no concern with the diminution of their value. It may impair the remedy which his lien afforded, but it cannot affect his personal demand against the shipper. This conclusion ap 23. Wood v. Hubbard, 62 Fed. 753 10 C. C. A. 623. pears to be so natural and just that I cannot perceive any plausible ground upon which it has been questioned or denied. ''24 Sec. 803. (§ 446.) Same subject.-A different opinion was at one time expressed by Lord Mansfield, who is reported to have said that, "if he (the merchant) abandons all, he is excused freight; and he may abandon all though they are not all lost."25 But this is said to have been a dictum for which the questions in the case did not call, and it is now conceded to have been an erroneous statement of the law, which has been settled in England in conformity with that of the American courts. "The true test," it is there said, "of the right of freight is the question whether the service in respect of which the freight was contracted to be paid has been substantially performed; and according to the law of England, as a rule, freight is earned by the carriage and arrival of the goods ready to be delivered to the merchant, though they be in a damaged condition. "26 But when the damage to the goods 24. Per Kent, C. J., in Griswold V. The Ins. Co., 3 Johns. 321; Whitney v. Ins. Co., 18 id. 208; McGaw v. Ocean Ins. Co., 23 Pick. 405; Steelman v. Taylor, 3 Ware, 52; The Cuba, id. 260. owner for his claim. In considering it, the causes from which the deterioration in the merchandise may proceed must be distinguished. If it proceeds from the fault of the master or mariners, 25. Luke v. Lyde, 2 Burrow, the merchant is entitled to a com882. 26. Dakin v. Oxley, 15 Com. B. (N. S.) 646; Duthie v. Hilton, 4 L. R. (C. P.) 138. In Seaman v. Adler, 37 Fed. Rep. 268, Pardee, J, cites as authority Maclachlan on Shipping, 469, 470, as follows: "It may happen, however, that goods existing in specie when brought to the place of destination are so deteriorated in condition as not to be worth the freight; and then arises the question whether the merchant is bound to pay the freight, or is at liberty to abandon the goods to the ship pensation and may recover it against the owners or master." "On the other hand, if the deterioration 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 the ship, the merchant must bear the loss and pay the freight. The master and owners are in no fault; nor does their contract, though taken as the contract of common carriers, contain any insurance or guaranty against such an event." has been occasioned by the fault of the carrier, or by accidents. or causes which were not inevitable, and against the consequences of which he has not protected himself by his contract, he will, of course, be held answerable for the loss to the freighter. In such cases "the question of fortuitous damage must be settled with the underwriter, and that of culpable damage in a distinct proceeding for such damage against the ship captain or owners."27 Or, in American practice, by offset or recoupment in the same action. Sec. 804. (447.) The amount of compensation for the carriage. The amount of compensation may be fixed by statute in a proper case; it may be established by usage; it may be fixed by the agreement of the parties; and in the event that none of these methods can be resorted to, the inquiry must be, what is a reasonable rate. Where the amount of compensation for the carriage is fixed by statute, the statutory rate must, of course, prevail unless the parties have agreed upon a different rate.28 Where the rate has been established by usage, the usual rate must govern in the absence of an agreement to the contrary.29 Where the rate has been fixed by contract, the contract will prevail.30 When, however, neither of these means See also, Gibson v. Brown, 44 Fed. Rep. 98; Shipping Co. v. Armitage, L. R. 9 Q. B. 99. 27. Dakin v. Oxley, supra. 28. Ante, 574. 29. After a party has long acquiesced in the charging of a certain rate, he cannot be heard to complain that the rate so paid was unreasonable. Killmer t. Railroad Co., 100 N. Y. 395. Customary and reasonable rate will prevail where no agreement. London, etc., R'y Co. v. Evershed, L. R. 3 App. Cas. 1029. 30. Blackshere v. Patterson, 72 Fed. 204, 18 C. C. A. 508, 25 U. S. App. 695. An offer to carry freight for a certain rate requires acceptance in order that there may be an actionable contract. If withdrawn before acceptance, and the shipper thereafter ships the goods at the usual rates, he cannot recover the excess he pays over the rates given in the offer as for a breach of contract. Bouker v. Railroad Cc., 35 N. Y. Supp. 30, 89 Hun, 132. The fact that a man has on hand a large quantity of merchandise which he intends to have transported does not relieve him from any reasonable increase in the freight charge which may be made while the goods are in his custody for future transportation. So also, the fact that a shipper |