n those times answered to the forfeiture of his bond to ilotage authorities, which is about the worst fate which an nowadays befall an incompetent pilot.

Writers on jurisprudence have had less influence in Engand on the substance and the form of municipal law than in other European countries, but it is important to note that in the introduction to the first edition of his famous work on the Law of Merchant Ships and Seamen (1802), Lord Tenterden writes: "The Ordinances most frequently quoted are those of Oleron and Wisbuy, the two Ordinances of the Hanse Towns, and the Ordonnance de la Marine du Mois d'Aoust, 1681. The Ordinances of Oleron and Wisbuy and the first Hanseatic Ordinance are in the hands of every lawyer; and whenever the Hanseatic Ordinance is mentioned generally, the reader will understand this to be spoken of. The Hanseatic Ordinance of the year 1614 was published with a Latin translation and commentary by Kuricke in a small quarto, at Hamburg, in the year 1677." The value placed on the mediæval codes in Lord Tenterden's time is well illustrated by his remark that the Ordinances of Oleron and Wisbuy "are in the hands of every lawyer." To-day (1911) it is probable that not a single English or American practitioner possesses them or would ever refer to them if he owned them. But the importance of Lord Tenterden's reference to the medieval collections of sea laws in his classical work on the Law of Merchant Ships lies in the fact that he eventually became Lord Chief Justice, and that in this capacity he was able to give practical effect to rules which, though they might be approved by him as a text-writer and influence his opinion

as a mere jurist, carried in the pages of his book no weight as legal precedents. But after he had reached the Bench, the words which he wrote obtained an exceptional authority, and in this way could affect the judgment of those who succeeded him as judges. This statement is well illustrated by Lord Tenterden's dictum in his book that where a ship has met with a disaster the master is at liberty to procure another ship to transport the cargo to its destination, but if his ship can be repaired he is not bound to send the cargo forward in another ship. His action must depend on the circumstances of the case. This statement of the law accords with that of the Rhodian law (d), the Laws of Oleron, and the Law of Wisbuy, and is opposed to that of the old French ordinance, which makes the duty of the master to tranship obligatory. This rule as to liberty to tranship, as stated by Lord Tenterden, was approved by the Court of Queen's Bench in 1838 (e), and we may, therefore, fairly say that on this point the connection between the medieval codes and modern English law is reasonably traceable.

Some of the judgments of Lord Mansfield, again, show how much the jurists of modern times relied for guidance on the medieval sea laws of the Continent. This eminent judge must be regarded as one of the first founders of maritime law in this country, and the debt which he owed to the medieval codes is visible in a decision which laid down the rules which govern the right to freight pro ratâ itineris. The rule of English law is that

(d) The Rhodian Sea Law (Ashburner), Chap. XLII. p. 116.
(e) Shipton v. Thornton, 9 Adolphus & Ellis, 314.

if the voyage is not completed, the shipowner is not entitled to freight for goods delivered at some point short of the agreed destination. If, however, the voyage comes to an end through some peril of the sea at an intermediate port the shipowner is bound to carry on the goods in his own vessel when she has been repaired, or to tranship them to another craft for this purpose, if he desires to obtain the original stipulated freight. But, on the other hand, if the owner of the cargo accepts it at this intermediate port, it is said that the law of England implies a contract. to pay a freight in proportion to the length of the voyage which has been actually performed. In 1738, the House of Lords gave judgment to the effect that full freight was due on goods carried only to an intermediate port when the shipowner was willing to carry them to their destination. In 1759, however, the first fully reasoned decision which can be said to exist in the reports was delivered by Lord Mansfield in the case of Luke v. Lyde (f), which laid down the law as has been stated. This decision has long been a household word in connection with maritime law. That the main ground of it was found in the maritime law as formulated in the Rhodian Sea Law, the Judgments of the Sea, and in the Consulate of the Sea, is apparent on the face of the judgment itself. That there were all the necessary elements present on which to base the fiction of an implied contract is equally clear. It is certain that this judgment formed the foundation for the subsequent superstructure of case law on this subject, in which the liability to pay freight pro ratâ is treated as being based on the doctrine of an implied contract. But

(f) 2 Burrows, 882 (1759).

case

however convenient this fiction may be, it is impossible to doubt that the true origin of the cargo owner's liability is the equitable right, or, more popularly speaking, the just claim of the shipowner, to receive payment for the partial carriage of the goods, for the work which his ship and sailors have done for the cargo owner, who by accepting his goods at a particular spot short of their original destination has received a service from the shipowner for which he is in justice bound to remunerate him. It may be well to give an instance of the judicial use of this convenient and frequently used fiction. In the of Mitchell v. Darthey (g), Chief Justice Tindal spoke these plain words: "The claims of the shipowner must therefore rest upon an implied contract to remunerate him for services performed not according to the agreement, but a service from which the freighters have received a benefit.” Let us contrast this right so based, with the words of the Fourth Article of the Judgments of the Sea, as they appear in the translation by Sir Travers Twiss in the Rolls Series of the Black Book of the Admiralty (h): 'A ship departs from Bordeaux or elsewhere; it happens sometimes that she is lost, and they save all that they can of the wines and other goods. They may well have them paying their freight for such part of the voyage as the ship has made if it pleases the master. And if the master wishes, he may properly repair his ship, if she is in a state to be speedily repaired; and if not he may hire another ship to complete the voyage, and the master shall have his freight for as much of the cargo as has been saved in any manner. And this is the judgment in the case.

(g) 2 Bingham N. C. 555.

(h) Vol. III. p. 8.