owner of the goods receives the whole or any part of the goods at any intermediate port, on the refusal of the carrier to fulfil his contract, the acceptance is no bar to a suit, but it can be shown in mitigation of damages.1 If the consignee has sold the goods before arrival, and is prevented from fulfilling his contract by a breach on the part of the carrier, this is not to be considered in assessing the damages.2

Where a cargo of goods was delivered in a damaged condition, caused by the fault of the master, and it was sold by the consignees with the consent of the master, and the evidence showed that it would have sold better had the damaged part been separated from the rest, but that it would have been tedious and troublesome to have done so, it was held that it was the duty of the master, and not of the consignees, to have made such separation.3

Sales by auction are commonly resorted to, to ascertain the value of damaged merchandise, and when fairly conducted afford strong evidence of the market value.4

1 Bowman v. Teall, 23 Wend. 306; Cox v. Peterson, 30 Ala. 608; Lowe v. Moss, 12 Ill. 477; Atkisson v. Steamboat Castle Garden, 28 Misso. 124.

CHAPTER VIII.

OF CHARTER-PARTY.

SECTION I.

WHAT CONSTITUTES A CHARTER-PARTY.

WE have considered the use of the ship by the owner, in carrying his own goods, or those of others, under bills of lading only. He may, however, prefer to let his ship out to others, for their use. This is commonly done by a charter-party; an instrument of frequent use and great importance among merchants. No especial form is necessary, and it is quite common to introduce into it any stipulations or provisions which the peculiar character of the voyage or the purposes of the parties may require. Indeed, we say of this contract, as of the sale of a ship and the contract of inurance, that while it is undoubtedly the proper and usual way to reduce the contract to writing, and have it evidenced and defined by a written document, yet we do not know of any rule of law in this country making this indispensable.1 But, after the charterparty is signed, any material alteration or addition to it by a party or his agent, will make it null and void, though the alteration was made without any fraudulent design.2 And it would seem that the rule is the same where the alteration is made by a stranger. And

1 The French Code de Commerce and the Ordonnance de la Marine, prescribe that the contract shall be reduced to writing. Code de Commerce, art. 273; L'Ord. de la Marine, liv. 3, tit. 1, art 1. Valin is of the opinion, however, that it is good by parol. Commentaire sur L'Ord. liv. 3, tit. 1 art. 1; Molloy, de Jure Maritimo, b. 2, c. 4, § 3, states that it is generally in writing but may be by parol See also Taggard v. Loring, 16 Mass. 336; Perry v. Osborne, 5 Pick. 422; Cutler v. Winsor, 6 Pick. 335; Thompson v. Hamilton, 12 Pick. 425; Vinal v. Burrill, 16 Pick. 401, 406; Muggridge v. Eveleth, 9 Met. 233, 236; The Phebe, Ware, 263.

2 See City of Boston v. Benson, 12 Cush. 61.

3 In Croockewit v. Fletcher, 1 H. & N. 893, 40 Eng. L. & Eq. 415, which was

when the charter-party is in writing, parol evidence is not admissible to vary its terms.1

As a charter-party may be by parol, the rights and liabilities of the parties to it with respect to a third person are fixed when the contract is complete, and are not affected by a subsequent instrument in writing.2

It has been contended that a charter-party is a conveyance within

an action by an owner of a vessel against the charterers for refusing to take the vessel, the defendants pleaded that whilst the agreement was in the possession of the plaintiff, it was, without the knowledge or consent of the defendants, altered in material particulars (setting them forth); that the alteration was not made in correction of any mistake or to further the intention of the parties, by reason whereof the agreement became void. It appeared in evidence that after the charter-party was signed, the agent of the plaintiff made the alterations complained of, and stated the fact to the defendants when he handed the instrument to them; and on their saying that they did not know whether they would accept it with the alterations, he said that he had made the alterations on his own responsibility, and would strike them out at once. The defendants afterwards refused to accept the instrument. The court said: "We also think that the addition to or alteration of the charter is a fatal objection to the plaintiff's right to maintain the action. It is no doubt apparently a hardship that where what was the original charter-party is perfectly clear and indisputable, and where the alteration or addition was made without any fraudulent intention, and by a person not a party to the contract, a perfectly innocent man should thereby be deprived of a beneficial contract; but, on the other hand, it must be borne in mind that to permit any tampering with written documents would strike at the root of all property; and that it is of the most essential importance to the public interest that no alteration whatever should be made in written contracts, but that they should continue to be and remain in exactly the same state and condition as when signed and executed, without addition, alteration, erasure, or obliteration." Pigott's Case, 11 Rep. 26, and Davidson v. Cooper, 11 M. & W. 778, were cited. The replication of the plaintiff stated that the alteration was made by a stranger, but the court said that if this had been proved to be true the defendants would have been entitled to a judgment non obstante veredicto.

The Eli Whitney, 1 Blatchf. C. C. 360; Pitkin v. Brainerd, 5 Conn. 451. Any stipulation not inserted in the contract will be considered as waived. Renard v. Sampson, 2 Kern. 561, 2 Duer, 285. But in Almgren v. Dutilh, 1 Seld. 28, where a vessel was let, reserving what was necessary for the accommodation of the officers and crew, evidence of a conversation pending negotiations for a charter-party, in regard to the part necessary, was admitted.

• Swanton v. Reed, 35 Maine, 176. The defendant in this case verbally chartered his part of the vessel on the first of the month, and on the tenth a charterparty was signed and sealed. The plaintiff furnished supplies on the third, and it was held, that the defendant was not liable.

the meaning of the act of 1850,1 and therefore, unless recorded, is void except as to persons having notice of it. But the courts are inclined to take a different view, and to consider the act as not applying to a charter-party.2

Formerly, charter-parties, being a kind of maritime indenture, were sealed; but we infer from the books that the omission of the seal is general now in England, as well as in this country, where, indeed, it is quite universal. No advantage whatever is obtained by putting a seal to the instrument; and, although we have some doubts whether all the technical rules in regard to specialties would be now applied to a sealed charter-party, it is certain that such instruments have received a narrow and merely technical construction within a few years, and the contract would probably be embarrassed by the use of a seal at present. For particulars of the difference, we refer to our note.3

An agreement that the parties will hereafter make a charterparty, is not, in law or in fact, the same thing as a charter-party. But an agreement for a future charter-party which contains all the terms and provisions of the instrument, and which appears to

1 Chap. 27, § 1, 9 U. S. Stats. at Large, 440.

2 Mott v. Ruckman, 3 Blatchf. C. C. 71; Hill v. The Golden Gate, 1 Newb. Adm. 308.

The chief differences which exist between a charter-party under seal, and one not under seal, are these. If the owner of a ship has no agent in a foreign country, the master, virtute officii, being an agent of the owner, can let the ship by charter-party, within the usual course of her employment. Hurry v. Hurry, 2 Wash. C. C. 145; Ward v. Green, 6 Cow. 173. And if he is shown to have been master, he will be deemed to continue to hold that character, until some overt act or declaration of the owners displaces him from that situation. The Sch. Tribune, 3 Sumner, 144, 149. If a charter-party is made by the master in his own name, under seal, the owner of the vessel cannot sue upon it, in his own name, although it was made for his benefit. Bristow v. Whitmore, 1 H. R. V. Johns. Ch. 96, 107. But he may sue in the name of the master. Bristow v. Whitmore, De Gex & J. 325. But he cannot make a charter-party under seal, in the name of his principal, if only authorized by parol, because a deed under seal must be made by the party himself, or by another for him in his presence; or in his absence, by an agent authorized by a deed under seal. Horsley v. Rush, reported in Harrison v. Jackson, 7 T. R. 209; Pickering v. Holt, 6 Greenl. 160. Again, in contracts not under seal, if the agent intends to bind his principal, it will be sufficient, if it appear from the contract that he acts as agent, but in those under seal, if he does not use the name of his principal, he alone will be liable. Andrews v. Estes, 2 Fairf. 267; New England Mar. Ins. Co. v. De Wolf, 8 Pick. 56.

be treated as a charter-party by the parties, will be so regarded by the courts; or, what would be the same thing, this agreement, together with the facts, would be evidence of a contract made but not written.1 The principles have been applied to this question which have led the court to regard a promise to accept a bill of exchange as an acceptance; 2 and an agreement to lease, as a lease.3

If the charter-party is signed by an agent purporting to be such, as "A by B. agent," the agent is not liable for a breach, although his principal resides out of the country.5

1 The Schooner Tribune, 3 Sumner, 144. The instrument in this case was as follows: "I hereby agree, within three days, to be ready at Hampden, with a new suit of sails on the Tribune, to load for T. W. Leston (the libellant), and proceed without delay to Lubec, to take in what may be wanted to constitute her cargo, and proceed to Havana, and back to any port of the United States; also, that the charter-party shall not commence until she is loaded at Lubec, provided I am not detained over seven days in loading said vessel." Signed by the master. On the same paper, immediately below this, was the following memorandum, signed by the libellant: "I agree to allow said vessel on said charter-party, five hundred Spanish dollars per month. The charter to be made at Lubec." Mr. Justice Story held, that though the meaning of this instrument was, that the charter-party should be made at Lubec, yet that it might be treated as a charter-party, which, though loose and informal, still contained the substantial provisions of such an instrument; and that the making of a more formal instrument under such circumstances might be treated rather as a further assurance than as the inception of a maritime charter-party. See also Lidgett v. Williams, 4 Hare, 456, 462.

* Clarke v. Cock, 4 East, 57, 69; Wynne v. Raikes, 5 East, 514; Ex parte Dyer, 6 Ves. 9; Pillans v. Van Mierop, 3 Burr. 1663; Payson v. Coolidge, 2 Gallis. 233, 2 Wheat. 66; Russell v. Wiggin, 2 Story, 213; Ulster County Bank v. McFarlan, 3 Denio, 553.

3 Warman v. Faithfull, 5 B. & Ad. 1042.

4

* In Deslandes v. Gregory, 2 Ellis & E. 602, the charter-party recited that it was entered into between the owners of the ship and Messrs. G., Brothers, as agents to Samuel Ferguson, merchants and charterers. The owners agreed also to take such goods as the charterers or their agents should send, and should reload from the agents of the said merchants, &c. It was signed, " For Samuel Ferguson, G., Brothers, as agents." It was contended that the use of the words merchants and charterers in the plural showed that the signers were liable as principals, but the court held that they were not liable. Affirmed in the Exchequer Chamber, 2 Ellis & E. 610. A charter-party made by A B, describing himself as agent of C D, and signed A B, is the contract of A B. Parker v. Winlow, 7 Ellis & B. 942. As to what is the proper way for an agent his principal liable, see 1 Parsons on Contracts, 5th ed. p. 54. 'Bray v. Kettell, 1 Allen, 80.

to

sign in order to hold See ante, p. 276, n. 3.