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such cargo be not the one stipulated for; unless the shipper agreed to pay a certain sum as forfeiture, on his default. For then the shipowner can claim that sum, as well as whatever else the ship might earn, though these two sums together exceed the freight agreed on (b).
If the charterer has agreed to discharge the ship within a fixed time, he is absolutely bound to discharge her within that time, whatever may be the impediments. If no time be fixed, he must discharge the cargo within a reasonable time (i). The duty of providing proper means for discharging the cargo at her port of destination lies on the charterer (k).
Where a charter-party stipulates that a ship is to load "Or so near or unload at a certain place,
or so near thereto as she thereto as she
may safely may safely get,” the stipulation will be fulfilled by the get"-effect ship being brought near the place, if she cannot be brought into the place itself in consequence of some obstruction, which cannot be overcome without unreasonable delay. The voyage will then be regarded as completed, and the charterer will be bound to load or unload at the place where the ship actually is ().
Mere delay caused by the ordinary course of navigation, or tides, will not excuse completion of the voyage (m). Frequently, by a stipulation in a charter-party, the cargo “Port of is to be delivered at a safe port within certain limits, or at one of several ports “ as ordered," and the ship is to call at a port of call for orders. In such a case the charterer, in
(h) Bell v. Puller, 2 Taunt. 285 ; see" Cases" (1) at end of this $; Fenwick v. Schmalz, L. R., 3 C. P. 313.
(i) Postlethwaite v. Frecland, 5 App. Cas. 599 ; 49 L. J., Ex. 630; 42 L. T. 845.
(k) Stanton v. Richardson, L. R., 9 C. P. 390; 45 L. J., C. L. 78; Jackson v. Union Marine Insurance Co., L. R., 10 C. P. 125; Kopitoff
v. Wilson, 1 Q. B. D. 377
(2) Dahl v. Donkin or Nelson, 6 App. Cas. 38 ; 50 L. J., Ch. 411 ; 44 L. T. 381 ; 29 W.R. 543; Hayton v. Irwin, 5 C. P. D. 130; 41 L. T. 666 ; The Alhambra, 6 P. D. 68 ; 50 L. J., P. 36.
(m) Parker v. Winlow, 7 E. & B. 942 ; Brown V. Johnson, 10 M. & W. 331.
2. By ship
giving his instructions, must name a port to which the ship can go in safety (o).
Where by the terms of a charter-party a ship is to proceed to a certain port, and there load a full cargo for a freighter, who has no interest in the outward cargo, the freighter will not be liable for omitting to provide the cargo, unless the master informed him when the vessel was ready for it (p).
Breach by shipowner of his covenant in the charterparty to sail by a fixed day will free the merchant from his obligation to provide a cargo; the sailing on or before the fixed day being a condition precedent. For time will then be of the essence of the contract (1). If the vessel quits her moorings and is ready to sail by the fixed day, and the master bonâ fide intends to commence the voyage at the stipulated time, the covenant is complied with, though the voyage be subsequently delayed by an unforeseen occurrence (r). If no express stipulation as to time, the shipowner must furnish a ship fit to carry the cargo within a reasonable time. Otherwise the charterer can throw up the charter.
A shipowner will be liable for a breach of his contract, even when caused by inevitable accident, unless the charterparty contains a provision to the contrary (8).
The owner or master may open or refuse to take on board any package, which he suspects to contain dangerous goods. Any such package taken on board without notice
(6) Ogden v. Graham, 1 B. & S. (v) Moir v. Royal Exch. Ass. Co., 773; Gen. Steam Nav. Co. v. Slip- 4 Camp. 84; Lang v. Anderdon, 3 per, 11 C. B., N. S. 493 ; Capper B. & C. 495; Sharp v. Gibbs, 1 H. v. Wallace, 5 Q. B. D. 163.
& N. 801; Gen. Steam Nav. Co. v. (p) Fairbridge v. Pace, 1 C. & K. Slipper, 11 C. B., N. S. 493 ; Price 317; see “Cases" (4) at end of v. Livingstone, 9 Q. B. D. 679 this $.
(C A.) (9) Glaholm v. Hays, 2 M. & G. (8) Hills v. Sughrue, 15 M. & W. 267; see “ Cases” (2) at end of 253; see “Cases” (3) at end of this this $; Tully v. Howling, 2 Q. B. D. $; Puller v. Staniforth, 11 East, 182 (C. A.)
being given may be thrown overboard, or may be declared forfeited by an Admiralty Court (t).
If once the cargo be on board, the goods cannot be Relanding re-landed by the charterer, unless he pay the freight, cargo. except in cases where he has been deceived by the shipowner (u). If the charterer desire to have fresh bills of lading for a different destination, he must either give up those already signed, or indemnify the shipowner against all consequences (r).
CASES. 1. A ship was chartered to take out a cargo of lead to P., and to bring back cargo, for which freight was to be paid at eleven guineas a ton. If from political circumstances the ship did not unload and obtain a return cargo at P., the freighters agreed to pay a gross sum. The ship was prevented from discharging, and the charterer supplied no homeward cargo. The master, fore, took in goods on freight, and brought them home along with the lead. Held, that he was entitled to the gross sum, and also to the freight so earned (w).
2. It was agreed by charter-party that a ship should go to Trieste, and there load a cargo to be delivered in the United Kingdom, the vessel to sail from England on or before the 4th of February next. The vessel did not sail till the 24th February. Held, that the charterers were entitled to throw up the charter, the clause as to the date of sailing being a condition precedent (x).
3. Certain shipowners covenanted by charter-party to go to one of the Guano islands, and there load a cargo of guano. No guano was found on the island. Held, that the owners were liable on their covenant(y).
4. Defendant chartered a brig on a voyage to S. and back. By the terms of the charter-party, the brig was to load at S. a cargo of corn, for the defendant's agent, and then to proceed to certain specified ports. The brig sailed for S. with a cargo in which the defendant had no interest. On her arrival at S. she was duly reported, and the outward cargo discharged; but no notice being given to freighter's agent that the brig was ready for the home
(t) 36 & 37 Vict. c. 85, ss. 23-28.
() Peek v. Larsen, L. R., 12 Eq. 378.
() Davidson v. Gwynne, 12 East, 381 ; Tindall v. Taylor, 4 E. & B.
(w) Bell v. Puller, 2 Taunt. 285.
(2) Glaholm v. Hays, 2 M. & G. 257.
(y) Hills v. Sughrue, 16 M. & W. 253.
Warranty of ships.
Carriage by owner of his own goods.
ward cargo, he did not provide one. The master, after incurring sixteen days' demurrage, rechartered his ship with a cargo for Leith. Held, that the defendant was not liable for his agent's omission to provide a cargo (z).
§ 43. If the ship be described in the charter-party as being of a particular class, or in a particular position, it will amount to a warranty. Such warranty, however, will not be a continuing warranty, but only applies to the time when the charter-party was drawn up (a). For instance, a description of a ship in a charter-party as A1 will be a warranty of her being so classed at the date of the charterparty. But it is no warranty that the ship will continue A1 (b). So a description of a ship in a charter-party as “now at sea, having sailed three weeks ago," will amount to a warranty. Therefore, if she did not sail then, the charterer will be discharged (c).
$ 44. If a person carries his own goods in his own ship, there can be no freight, for a shipowner cannot contract with himself to pay freight; but only an increased value in the goods, due to the carriage of them. In such a case a nominal freight, or the words “ free of freight” or free on owner's account,” are usually inserted in the bill of lading
From this it follows that, though a purchase or mortgage of a ship, as a general rule, carries freight which is being carried, it will not in this instance give any claim as against the shipowner for the carriage of his goods, nor will it give any lien on the goods for freight (d).
(z) Fairbridge v. Pace, 1 C. & K. (d) Per Cockburn, C. J., Gumm 317.
v. Tyrie, 4 B. & S. 680; 6 B. & S. (a) French v. Neugass, 3 C. P. 298 ; Swan v. Barber, 5 Ex. D. 130; D. 163; Hurst v. Usborne, 18 C. B.
49 L. J., Ex. 253; 42 L. T. 490 ; 144.
28 W. R. 563; The Merc. Bank v. (6) Hurst v. Usborne, 18 C. B. Gladstone, L. R., 3 Ex. 233; see 144.
(1) at end of this g. (c) Ollive v. Booker, 1 Exch. 416.
But the shipowner will become liable for the freight, if he makes third persons who have advanced him money the consignees of such goods, and if the goods are by the bill of lading deliverable to their order (e).
CASES. 1. F. & Co., shipowners at Liverpool, requested the defendants to purchase at Calcutta cotton to be shipped on their own account on board two of their vessels, a nominal freight to be inserted in the bill of lading. Before the order was executed, one of the ships was transferred to the plaintiffs. The defendants, not knowing of the transfer, shipped part of the cotton ordered on that ship. The master, who also had no notice, signed the bills of lading to the defendants' order free of freight. Before the ship reached Liverpool F. & Co. stopped payment. Held, that the plaintiffs could not claim freight for the carriage of the goods from the defendants (f).
2. The London bankers of H., of Stockholm, agreed to open a credit in his favour with merchants at Akyab for the purchase of “ rice for English market, shipped by my vessel the Java, at &c., f. o. b.” The rice was bought, shipped on board the Java, and made deliverable to the bankers on payment of freight, the bill of lading being indorsed to them. While the Java was on its voyage, H. obtained advances from C. & Co., assigning the freight to them as security. Held, that C. & Co. were entitled to the freight, and that the London bankers were, like all other consignees of a cargo, liable to pay it under the bill of lading, though the cargo was brought to England in H.'s own vessel, the Jaya (g).
$ 45. A charter-party is liable to a stamp duty of 6d. The Stamp duty. duty may be denoted by an adhesive stamp, which must be cancelled on the execution of the instrument.
It may be stamped within seven days on payment of the duty and of a penalty of 4s. 6d., or within one month from execution on payment of the duty and a penalty of 101. ; but it cannot be stamped after one month from execution.
If the charter-party be executed abroad, it may be
(e) Weguelin v. Cellier, L. R., 6 E. & I. App. 286; see “Cases” (2) at end of this s; Keith v. Burrows, 2 App. Cas. 636.
(f) The Merc. Bank v. Gladstone, L. R., 3 Ex. 233.
(9) Weguelin v. Cellier, L. R., 6 E. & I. App. 286.