« ПретходнаНастави »
$ 37. Contracts by owners of goods or their agents with ship- Contracts of owners or their agents for the conveyance of their goods in
affreightthe latter's vessels are termed contracts of affreightment.
Contracts of affreightment are of two kinds, viz. : (1) contracts of affreightment by charter-party; and (2) contracts for conveyance of goods in a general ship (a).
A contract of affreightment by charter-party is a con- Chartertract by which the owner of a ship or his agent lets the
party. ship, or some principal part of it, to a merchant for the conveyance of his goods on a certain voyage to one or more places, in consideration of a certain sum being paid for the hire of the vessel (6). Both the merchant and the owner will be bound by the terms of the charter-party (c).
The charter-party is generally under seal, though neither a deed, nor even a written instrument, is absolutely necessary, and generally executed by the owner of the ship, or by the master, if made abroad. If a charter-party made by the master of the vessel be drawn up in the form of a deed, the shipowner will not be liable on the covenants; unless the master had authority by deed thus to execute a charter-party (a). Though the shipowner will not be liable on the covenants contained in such a charter-party, yet he will be liable in respect of his ordinary duties (e).
Whether or not under the charter-party the possession (a) See Ch. VIII.
(d) Horsley v. Rush and Tolson, (6) Abbott, Pt. IV. Ch. I. ; cited in Harrison v. Jackson, 7 T. Maude & Pollock, Ch. VI.
R. 207; see “Cases" (2) at end of (c) Dahl v. Donkin or Nelson, 6 App. Cas. 38; 50 L. J., Ch. 411; (e) Leslie v. Iilson, 3 B. & B. 171. 44 L. T. 381; 29 W. R. 543.
Liability of an agent executing a charterparty.
and temporary ownership of the ship passes to the merchant will depend on the terms of the charter-party. This is an important question, as the shipowner's lien for his freight may depend on it. As a general rule, the possession of the ship does not pass to the merchant, unless it is absolutely necessary that he should have legal possession of it, as if the ship is chartered for the coasting trade or for warlike purposes.
When it does so pass to him, the charterer becomes liable for damage caused by the acts or default of the master or crew; for instance, a collision (f).
An agent, to secure himself against liability on the charter-party, should contract in the name of his principal, and sign “per procuration of --" (g). For if he do not disclose his principal he will himself be liable to an action on the charter, though the principal be subsequently disclosed (7). Where the contract, though describing one of the parties as agent, clearly shows he is acting as such only for a named principal, he will not be liable, though his signature be unqualified, and though his principal reside abroad (0)
Where an agent makes himself personally liable on a charter-party a cesser clause is often inserted. This clause provides that the liability of the agent is to cease as soon as the cargo is loaded. Consequently he will not be liable for anything happening after the loading, and not even ab initio, unless the charter clearly intends it (k).
If the charter-party does not provide to the contrary, the law of the state to which the ship belongs will govern as to the liability for sea damage and other accidents (?).
(f) Scott v. Scott, 2 Stark. 438; (i) Green v. Kopke, 18 C. B. 549 ; The Druid, 1 W. Rob. 391 ; The Deslandes v. Gregory, 2 E. & E. 602; Ticonderoga, Swa. 215; The Lem- Gadd v. Houghton, 1 Ex. D. 357 ; ington, 23 W. R. 421; see “Cases" “Cases” (3) at end of this g. (5) at end of this $.
(k) Oglesby v. Yglesias, E. B. & (9) Wake v. Harrop, 1 H. & C. E. 930; Milvain v. Perez, 30 L. J.,
Q. B. 91; Christoffersen v. Hansen, (h) Higgins v. Senior, 8 M. & W. L. R., 7 Q. B. 509. 834; Haugh v. Mancanos, 4 Ex. D. (1) Lloyd v. Guibert, L. R., 1 Q.
As in a charter for a voyage, the specified voyage is of the essence of the contract, and the charterer, if he cannot get the ship for the specified voyage, need not have her at all: so in a charter for time, if the charterer cannot have the vessel for the specified time, he need not take her for a shorter time, but can throw up the charter (m).
CASES. 1. The plaintiff agreed to charter a ship for twelve months after the completion of her then present voyage. After its completion and when the plaintiff was ready to load, the ship was detained as unseaworthy. The necessary repairs were not finished for over two months. Held, that the plaintiff was entitled to throw up the charter-party (n).
2. A charter-party by deed was executed by “G. by order and for account of Messrs. R. & Co.” G. had only a verbal authority from R. & Co. Held, that R. & Co. could not be sued on the charter (o).
3. A fruit broker in Liverpool gave a fruit merchant this sold note: “We have this day sold to you on account of M. & Co., 2,000 cases of Valencia oranges of the brand M. & Co.," and signed it without any addition. In an action against the broker for nondelivery: Held, that the words for “M. & Co.” showed an intention to make the foreign principals liable and not the broker, and that he could not therefore be sued (p).
4. Where a vessel was let to the Transport Board, the possession and temporary ownership of her were held to pass to the king, on account of the services for which she was hired (9).
5. A collision was caused by the fault of a steam wherry, which was at the time of the collision hired to a charterer. Under the charter-party, the owners were entitled to one-fifth of the wherry's earnings, and the charterer was to bear all expenses, the owners being under no liability whatever. The charterer had absolute control over the wherry. Held, that the wherry was liable in rem for the damage occasioned by the collision (r).
(m) Tully v. Howling, 2 Q. B. D. 182 ; see “ Cases" (1) at end of this §.
(n) Tully v. Howling, supra.
(0) Horsley v. Rush and Tolson, cited in Harrison v. Jackson, 7
T. R. 207.
(P) Gadd v. Houghton, 1 Ex. D. 357.
(9) Trinity House v. Clarke, 4 M. & S. 288.
(v) The Lemington, 23 W. R. 421. Construction of charterparties. Usage of trade.
$ 38. A charter-party cannot be varied by parol evidence (s), though its terms may, as in the case of other mercantile instruments, be explained, but not contradicted, by the usage of trade (1). Therefore where an agent executes a charter-party as owner, the real owner cannot sue on it (u). A custom or usage of trade inconsistent with the express terms of a charter-party cannot be set up (x).
The terms of a charter-party will be liberally construed, provided that the construction be not inconsistent with their obvious meaning (y). The express terms will not be extended by implication (s), neither will a new term be annexed on the strength of a custom or usage of trade (a).
A charter-party, like any other document, will be construed by the court; but it will be for the jury to decide as to the meaning of any words used in a particular sense, and afterwards for the court to decide on the meaning of the contract (6).
The word “month,” if used in a charter-party, will be held to mean a calendar, and not a lunar, month (c).
A custom of trade may make a broker who signs a charter-party as agent for an undisclosed principal (e.g., “as agents for charterers ”) personally liable on the contract (a).
(8) Gibbon v. Young, 2 B. Moore,
(1) at end of
(1) Cuthbert v. Cumming, 11 Exch. 405 ; see “Cases” (2) at end of this § ; Greaves v. Legg, 11 Exch. 642; Russian Steam Navigation Co. v. Silva, 13 C. B., N. S. 610; Buckle v. Knoop, L. R., 2 Ex. 333.
(u) Humble v. Hunter, 12 Q. B. 310; see “Cases" (3) at end of
163; 49 L. J., Q. B. 350; and see § 42, page 58.
(z) Dickson v. Zizinia, 10C.B. 602.
(a) Phillips v. Briard, 1 H. & N. 21.
(6) Smith v. Blandy, Ry. & M. 257; Smith v. Thompson, 8 C. B. 44; Ashforth v. Redford, L. R., 9 C. P. 20; Bowes v. Shand, 2 App. Cas. 455.
(c) Jolly v. Young, 1 Esp. 186 ; Simpson v. Margitson, 11 Q. B. 23.
(d) Hutchinson v. Tatham, L. R., 8 C. P. 482; Hough v. Manzanos, 4 Ex. D. 104; but see Robinson v. Mollett, L. R., 7 E. & I. Ap. Cas. 802.
(x) Hayton v. Irwin, 5 C. P. D. 130; 41 L. T. 666 ; 28 W. R. 665.
() Capper v. Wallace, 5 Q. B. D.
CASES. 1. Plaintiff covenanted by charter-party that his ship should receive from freighter's agent in Spain a homeward cargo, and sail therewith direct to London, the freighter covenanting to pay freight. The freighter's agent in Spain loaded a homeward cargo, and directed the plaintiff to proceed with it to Liverpool. The plaintiff delivered the cargo to the freighter at Liverpool. Held, that the substituted voyage could not be averred, and that the freight covenanted to be paid on delivery in London could not be recovered (e). 2. Defendant agreed by charter-party to load a vessel at Trinidad
a full and complete cargo of sugar and molasses.” It was the custom at Trinidad to load sugar in hogsheads and molasses in puncheons. “A full and complete cargo” meant there a cargo so packed. Held, that the custom was admissible in evidence, as explaining the contract (S).
3. In an action on a charter-party, executed not by plaintiff but by a third person, who in the contract described himself of the ship.” Held, that evidence was not admissible to prove that such person merely contracted as plaintiff's agent (9).
4. A charter-party to sail to “ London Surrey Commercial Docks,” will not be satisfied by the ship arriving at the dock gates, but not entering the dock (1).
$ 39. The usual clause in a charter-party exonerating the Exoneration
clauses. owner of ship from liability, if prevented from performing his contract “ by restraint of princes,” will only cover an actual (i), and not a mere anticipated (j), restraint. It will only avail for the benefit of the owner, and not of the shipper. Apprehension of capture will, however, justify delay in prosecuting the voyage (k).
Another usual clause, extending the exoneration in the (c) Thompson v. Brown, 7 Taunt. Cunningham v. Dann, 3 C. P. D. 655.
443; see “Cases"
(2) at end of (f) Cuthbert v. Cumming, 11 this ş; and see Ford v. Cotesworth, Exch. 405.
L. R., 5 Q. B. 545; Geipel v. Smith, (9) Humble v. Hunter, 12 Q.B.310. L. R., 7 Q. B. 404.
(n) Dahl v. Donkin or Nelson, (3) Atkinson v. Ritchie, 10 East, 6 App. Cas. 38; 50 L. J.,
Ch. 411; 530; see “ Cases" (3) at end of 44 L. T. 381; 29 W. R. 543. this $ ; Crow v. Falk, 8 Q. B. 467.
(i) The San Roman, L. R., 3 A. (k) The San Roman, L. R., 5 P. & E. 583; L. R., 5 P. C. 301 ; C. 301.