PART IV.

OF THE CARRIAGE OF GOODS IN MERCHANT SHIPS.

+CHAPTER I.

[† 241]

OF THE CONTRACT OF AFFREIGHTMENT BY CHARTER-PARTY; AND HEREIN,

(Ss.)1. Of the instrument of contract by Charter-party.

2. Of the usual contents thereof. Stipulations as to voyage,

freight, burthen of ship, &c.

3. Of Stipulations as to time for providing and receiving Cargo.

4. Construction of Charter-parties.

5. Of Covenants in Charter-parties. Conditions precedent.

6. Evidence of usage of trade, when admitted in their interpre

tation.

7. Bills of Lading for goods shipped under Charter-party. 8. Of the Charter-parties of the East India Campany.

THE contract by charter-party, of which it is here intended to treat, is, as I have before observed, a contract, by which an entire ship, or some principal part thereof, is let to a merchant for the conveyance of goods on a determined voyage to one or more places. A ship may indeed be let for other purposes, as to be employed in warfare, or the fishing, coasting, or other trade, under the entire management of the hirer; or by way of mortgage, reserving at least a temporary right of management to the latter; or one part-owner may let his share to another. But contracts of this nature do not form the subject of the present inquiry.

The term charter-party is generally understood to

be a corruption tof the Latin words charta-par- († 242]

tita (a); the two parts of this and other instruments being usually written in former times on one piece of parchment, which was afterwards divided by a straight line cut through some word or figure, so that one part should fit and tally with the other, as evidence of their original agreement and correspondence, and to prevent the fraudulent substitution of a fictitious instrument for the real deed of the parties. With the same design indentation was afterwards introduced, and deeds of more than one part thereby acquired among English lawyers the name of indenture. This practice of division, however, has long been disused, and that of indentation has become a mere form.

I propose, in the present chapter, to consider the modes in which this contract may be made, and to mention the usual stipulations contained in a charter-party, and some particular covenants, that have furnished occasion for the decision of a court of justice; reserving the consideration of the general duties that arise, as well out of the contract for conveyance in a general ship, as of this species of contract, for distinct chapters hereafter.

1. This instrument, when the ship is let at the place of the owner's residence, is generally executed by them, or some of them, (and frequently by the master also,) and by the merchant, or his agent. In a foreign port, it must of necessity, if it be by deed under seal, which is often the case, be executed by the master only, and the merchant or his agent, unless the parties have an agent resident in such port, authorized to this purpose, by deed or letter of attorney under seal.

*It is now, perhaps more commonly, an agreement not * under seal, and is called a memorandum of charter. (1)

(a) Hargrave's note on 1st Inst. 229. Pothier, traité de charte-partie, num. 1, gives the same etymology of this word from Boerius, but with a different explanation. "It was formerly usual," says Boerius, "in England and Aquitaine, to reduce contracts into writing on a chart, divided afterwards into two parts from top to bottom, of which each of the contracting parties took one, which they

placed together and compared, when they had occasion to know the terms of their contract." If from this account we are to understand that the contract was only once written, and the paper or parchment afterwards cut in two, the practice must have been very inconvenient, as neither party could, in the absence of the other, inform himself of the stipulation he had engaged to perform.

(1) An agreement for a charter-party to be made at a later period, was held, under the circumstances, to amount to a present charter-party, notwithstanding a more forinal instrument was contemplated. The Schooner Tribune, 3 Sumner, 144.

The old and new French codes of commerce require the charter-party to he in writing, though Valin holds, that the contract, if by parol, would be equally valid and binding. In the English law, the hiring of ships without writing is undoubtedly

I have before observed, that the execution of a charterparty under seal by the master, although said to be done on behalf of the owners, does not furnish a direct action, grounded upon the instrument itself, against them. (1)

This depends upon a technical frule of the law of [† 243] England (c), applicable as well to this as to other cases, and not affected by the mercantile practice of executing deeds for and in the name of absent persons; the rule of the law of England being, that the force and effect which that law gives to a deed under seal, cannot exist unless the deed be executed by the party himself, or by another for him, in his presence, and with his direction; or, in his absence, by an agent authorized to do so by another deed; and in every such case, the deed must be made and executed in the name of the principal (d). (2) The agent, indeed, either of the owner or merchant, may, and sometimes does, execute a charter-party and covenant in his own name, for performance by his principal, so as to bind himself to answer for his principal's

(e) Harrison v. Jackson and Others, 7 Term Rep. 207, and Horsley v. Rush and Another, (the case of a charter-party) there cited.

(d) If C. D., by a proper deed, authorize A. B. to execute a bond or other

deed for him, A. B. may do this either by writing "C. D. by A. B. his attorney," or by writing "A. B. for C. D." provided he delivers the instrument as the deed of C. D. Wilks and Another v. Backe, 2 East, 142.

valid. 3 Kent, (5th ed.) 203, 204; Taggard v. Loring, 16 Mass. 336; Thompson v. Hamilton, 12 Pick. 428; Muggridge v. Eveleth, Sup. Jud. Ct. Mass., March, 1845, Boston, 8 Law Rep. 21, 22. See ante, 2, note. >

(1) The master of a vessel cannot, merely in his character of master, bind the owners by a charter-party, under seal, so as to subject them to an action of covenant. Pickering v. Holt, 6 Greenl. 160. See ante, 125, 126, and notes, as to the master's authority to enter into contracts by charter-party. >

(2) In Mears v. Morrison, 1 Breese, 172, it is said, that the usual and appropriate mode of executing a deed or other writing by an agent or attorney, is for the agent or attorney to sign his principal's name, and then his own as agent or attorney. Signing in the following manner, without mentioning the name of the principal, is not binding on the principal; to wit, "A. B., agent." No particular form of words, however, is necessary; but the capacity in which the agent acts, must appear from the face of the instrument; and where this is the case, it is sufficient. Magill v. Hinsdale, 6 Conn. 464. If the name of the principal be signed, it seems to be indifferent whether it be before or after that of the attorney. id. Campbell v. Baker, 2 Watts, 83; Hovey v. Magill, 8 Conn. 680; Shelton v. Darling, 2 Conn. 435. See also Stinchfield v. Little, 1 Greenl. 231; Elwell v. Shaw, 1 Greenl. 339; Johnson v. Johnson, 1 Dana, 368; Fowler v. Shearer, 7 Mass. 14; Copeland v. Mercantile Ins. Co., 6 Pick. 198; Stackpole v. Arnold, 11 Mass. 27; Tucker v. Bass, 5 Mass. 164; Clapp v. Day, 2 Greenl. 30; Elwell v. Shaw, 16 Mass. 42; Key v. Parnham, 6 Har. & Johns. 418; Spencer . Field, 10 Wend. 87.

If a bond set forth, that A. B. as agent for C. D., legally appointed for that purpose, binds the said C. D. to make title, &c., and it be executed thus, A. B. (seal) agent for C. D., it is the deed of C. D., provided the agent's authority is sufficient. Deming v. Bullitt, 1 Black. 241. >

default, by force of the deed. (1) And in an action to recover freight or demurrage, claimed in pursuance of a charter-party by deed, it has been held, that the declaration must be specially framed on the deed itself (e). If such a charter-party be made between the master and the merchant, in pursuance of which goods are delivered to the merchant and his partners, the freight cannot be recovered in an action upon the case, brought by the owners against the merchant (ƒ). (2) So if the owner execute a deed to the merchant, containing the usual covenant for a right delivery of the cargo, he cannot be sued by the merchant for not delivering it, in an action upon the case, grounded on the bill of lading signed by the master (g). But where a charter-party under seal was made by the master in that character, with merchants who did not know that he was also a part-owner in the ship, as in fact he was; it was held, that they might sue him and the other owners in an action upon the case for a breach of such general duties as were not inconsistent with

the stipulations of the charter-party, such as the not [† 244] providing necessaries for the voyage, and femploying a negligent and unskilful master (h). (3) And whether the instrument be under seal or not, an action at law grounded upon it, must be brought in the name of the party to it, and

(e) Atty v. Parish, 1 B. & P. New Rep. 104. But query of this decision as to an action brought by and against the parties to the deed, whether the declaration may not be framed in debt generally, and the deed given in evidence. See the opinion of Bayley, J., in the case of Tilson v. The Warwick Gas Light Company,

4 B. & C. 968. See Fletcher v. Gillispie, 5 Bingh. 635. >

(f) Schack and Another v. Anthony, 1 M. & S. 573.

(g) Hunter v. Prinsep, 10 East, 378. (h) Leslie v. Wilson and Others, 3 B. & B. 171, and 6 B. Mo. 415.

(1) The rule of law, that an agent binds himself and not his principal, unless he use the name of the principal, applies only to sealed instruments. In contracts not under seal, if the agent intend to bind his principal and not himself, it will be sufficient if it appear in such contract, that he acts as agent. Andrews v. Este, 2 Fairf. 267; N. E. Marine Ins. Co. v. De Wolf, 8 Pick. 56. See Pentz v. Stanton, 10 Wend.

271.

The rule, in reference to the mode of executing an instrument by an agent, seems also to be relaxed in the case of a sealed contract, where the seal is not necessary to the validity of the instrument. Evans v. Wells, 22 Wend. 234. >

(2) 1 Chitty, Pl. (9th Am. ed.) 103. >

(3) 1 Chitty, Pl. (9th Am. ed.) 103, 136. >

In Kimball v. Tucker, 10 Mass. R. 192, where a charter-party was executed by two of five part-owners, containing a covenant to keep the vessel tight, staunch and strong, &c. during the voyage, it was held, that the charterer, who had paid money for necessary repairs, was not entitled to recover for the amount in an action on the case against all the part-owners; and that the remedy was confined to the charter-party and those who executed it. The Court laid great stress on the prior case of Banorgee v. Hovey, 5 Mass. R. 11.

not in the name of another, to whom he may have assigned his interest. And therefore the purchaser of a ship previously chartered cannot sue for the freight earned under the charterparty in his own name (i), although payment to him will be a good discharge to an action brought in the name of the seller, at least if the purchase be made before the ship sails on the voyage (k). In like manner, where goods were shipped, in pursuance of a charter-party made by the master with one Partridge, and whereby he engaged to receive a cargo of fruit from the agents or assigns of Partridge, and deliver the same to him or his assigns; and upon the shipment he signed a bill of lading, stating the goods to have been shipped by one Strange, by order of Rovedino and Moores, to be delivered to the order of Moores, and freight to be paid according to the tenor of the contract of affreightment; it was held, that Moores could not maintain an action against the master for negligence in the stowing of the fruit (1).

Another technical rule of the law of England, applicable also to the contract by charter-party under seal, should be noticed in this place. If a charter-party is expressed to be made between certain parties, as between A. and B., owners of a ship, whereof C. is master of the one part, and D. and E. of the other part, and purports to contain covenants with C., nevertheless C. cannot bring an action in his name upon the covenants expressed to be made with him, nor give a release of them, even although he seals and delivers the instrument (m). But if the charter-party is not expressed to be made between parties, but runs thus: This charter-party indented witnesseth, that C., master of the ship W., with consent of A. and B., the owners thereof, lets the ship to freight to E. and F., and the instrument [† 245] contains covenants by E. and F. to and with A. and

B.; in this case A. and B. may bring an action upon the covenants expressed to be made with them; (1) although, unless they seal the deed, they cannot be sued upon it (n). This latter, therefore, is the most proper form.

(i) Splidt v. Bowles, 10 East, 279. The charter-party appears to have been under seal; Morrison v. Parsons, 2 Taunt. 407. The charter-party was not under seal.

(k) Morrison v. Parsons, ubi supra. () Moores v. Hopper, 2 B. & P. New Rep. 411. It does not appear by the report, whether the charter-party was by deed or simple contract; the declaration

seems not to have noticed the charter-party

(m) Scudamore v. Vandenstene, 2 Inst. 673. See also Lord Ellenborough's judgment in Storer v. Gordon and Others, 3 M. & S. 322. Salter v. Kidgly, Carth. p. 76, and Barclay v. Hardy, K. B. Easter Term, 7 Geo. 4.

(n) Cooker v. Child, 2 Lev. 74, and see Gilby v. Copley, 3 Lev. 138.

(1) See 1 Chitty, Plead. (9th Am. ed.) 2, et seq. >