Freight pro rata itineris peracti
The contract for the conveyance of merchandise is in its nature an entire contract, and unless it be completely performed by the delivery of the goods at the place of destination, the merchant will in general derive no benefit from the time and labour expended in a partial conveyance, and consequently be subject to no payment whatever, although the ship may have been hired by the month or week. The cases in which a partial payment may be claimed are exceptions founded upon principles of equity and justice, as applicable to particular circumstances.
A treatise of the law relative to merchant ships and seamen. 10th edt, 1856, by Lord Tenderden, p.368.
This subject is referred to in the laws of Oleron, Art 4, the laws of Wisby, Art 40, and in the Consolato, Chapters 36, 87 and 89. and also in the Rhodian law, Art 42, but no distinct general rule on this question can be gathered from the ancient systems of maritime law. The terms of these laws are obscure, and they relate usually either to cases in which the merchant receded from his contract and required his goods to be redelivered to him, or to cases (probably not uncommon in times when the merchants frequently accompanied their goods on the voyage) in which the master refused to allow the merchant to retake the possession of the goods on the happening of any disaster to the ship. By the Roman law freight was not allowed where the completion of the voyage was prevented by sea perils.
Per C. E. Pollock in 3rd edt of his Compendium, 1864, footnote at p327:
Pro rata freight is an ancient form of settling payment for carriage of goods by sea when ship was not able to reach her final destination, which known from the times of the Rhodian law and re-emerged in the English case law in the eighteenth century. Placed between equity and contract this rule of law was inheritably far from clarity. As William Shee remarked in 10th edition of Lord Tenderden’s Treatise at p.333:
This rule of the Maritime Law, which directs the payment of freight according to the portion of the voyage performed - pro rata itineris peracti - is open to much observation and to many difficulties.
William Shee categorised two types of freight pro rata, namely, where voyage was partly performed and when only part of the cargo was delivered. His contemporary C. E. Pollock only mention that freight is in some cases recoverable for that portion of voyage which was partly performed. The later view generally corresponds with the modern interpretation (see also Part Delivery).
Earlier cases Lutwidge v Grey (1733-36) HL, Luke v Lyde (1759) 2 Burr 882 and The Copenhagen (1799) 1 Ch Rob 289, notably complicated on their facts, suggest that there is a right for pro rata freight for the proportion of the voyage performed. In all these cases ship, without any fault of the owners, was not able to continue on her original voyage (either become wreck or was badly damaged or captured) and the shipowners in all instances undertook to tranship the goods or what was remaining of them.
These decisions were hardly reconcilable with the strict liability rule recognized in England, that if the original contract has not been performed, no claim can arise under it. Therefore in Cook v Jennings (1797) 7 Term Rep 381 and later in Liddard v Lopes (1809) 10 East 526 position of law was clarified and decision in Luke v Lyde (1759) 2 Burr 882 explained on the ground of new implied contract, which is the only way when the carrier can be entitled pro rata freight under a new agreement.
…no liability to pro rata freight can arise, except on a new contract. If it necessary to make a new contract, that may be made between the owner and the charter between the owner and the consignee, and may be express or implied.
In Metcalfe v Britannia Ironworks Co (1877) 2 QBD 423, 3 Asp MLC 407 per Brett LJ at p.432.
Such new contract to pay pro rata freight is not to be implied from the mere fact that the consignee has taken delivery. Nowadays pro rata freight is mainly a issue of an academic interest.
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