560.  The  claim,  then,  for  freight,  when  the  goods  have  been
given  up  by  the  shipowner  short  of  their  destination,  must  rest
upon  a  new  contract,  either  expressly  made,  or  to  be  inferred  fronl
the  conduct  of  the  parties.
No  such  inference  can  be  drawn  unless  the  goods,  or  their  pro-
ceeds, have  been  accepted  voluntarily,  and  in  such  a  way  as  to
show  that  the  further  carriage  by  the  shipowner  was  intentionally
dispensed  with.  If  the  merchant  must  either  have  accepted  the
goods  where  they  lay,  or  abandoned  them,  no  promise  to  pay
freight  can  be  presumed  from  the  fact  of  their  being  given  up  to
him.  The  presumption  cannot  arise  unless  the  shipowner  was
able  and  wUling  to  carry  on  the  goods  to  their  destination,  or
might  have  become  so  within  a  reasonable  time  (x).
In  Luke  i).  Lyde  (y),  however.  Lord  Mansfield  allowed  freight
pro  rata,  though  the  shipowner  was  not  willing  to  carry  the  goods
on.  The  ship  Sarah  was  on  a  voyage  from  Nevffoundland  to
Lisbon;  she  was  captured  by  the  French  when  seventeen  days
out,  and  within  four  days'  sail  of  Lisbon,  but  was  re-taken  by  an
English  privateer,  and  brought  into  Biddeford  in  Devonshire.
The  owners  of  the  cargo  received  it  from  the  recaptors,  on  paying
half  its  value  as  salvors,  and  afterwards  re-shipped  it  to  Spain.
It  appeared  that  the  freight  from  Biddeford  to  Lisbon  was  higher
than  from  Newfoundland  to  Lisbon.     Luke  and  others,  the  owners


accepted  the  goods  of  the  master  of  The
Jane  at  Fayal  and  conveyed  them  on
their  own  account  to  Gibraltar,  in  which
case  we  think  that  they  would  be  liable
to  pay  freight  for  that  portion  of  the
voyage  performed  in  respect  of  the
goods  accepted.
