352 RECOUPMENT OR CROSS-LIBEL OPTIONAL TO RESPONDENT. It seems plain then, that for demurrage suits, damages may be recouped; in freight, damages by leakage, bad stowage, or other negligence may be recouped; and a party may well elect to plead, in defense, recoupment, or bring a cross-libel to recover all possible damage. FREIGHT HOW DEFINED HOW EARNED. 353 CHAPTER XIV. FREIGHT. PROPERLY speaking, freight is the net product of a marine adventure; or it is the rightful return to the merchant for the use of his vessel in conveying merchandise by sea to distant lands. But more generally still, freight may be defined to be a compensation for a safe maritime transportation and delivery of goods. The shipment and carriage of cargo may be by the owner himself, exclusively in his own vessel, and upon his own account; or by a charterer, who, under a charter party, hath leased the whole or a part of another's vessel; or by a mere shipper, under a bill of lading of the master or owner, and who, thereupon, consigns his goods to the master on board, or to an agent abroad, for sales and returns. But however the enterprise may be undertaken, and whatever its inception, mode, manner, or time of execu tion, the returns, at its termination, will be the profits, net proceeds, or freight arising or accruing from the voyage, charter, shipment, or other undertaking. Freight may accrue in several ways: 1. To the ship-owner; 2. From the charterer, under a charter party; 3. From the shipper, under a bill of lading, or under a verbal agreement. 354 CHARTERER AND SHIPPER. The owner may lade his own vessel entirely, taking the returns in specie and in solido. He then pays out insurance, outfit, and expenses of sailing and repairs; with these deductions, the net proceeds become to the owner his profits or freight. Of this description and character were the old East India and other voyages from the ancient commercial ports of New England, in the early part of the present century. In these expeditions, if shipments had been made, as in a general ship, the same lien on shipped goods would attach in favor of the general owner as do ordinarily attach in favor of a charterer. When the owner sails and loads his own ship, none of the usual written instruments required by the usages of commerce or trade, need be resorted or referred to beyond the enrolled bill of sale. If, however, from choice or courtesy, the owner makes any exception, and sees fit to admit shipments by individual adventures, it should be by means of bills of lading, drawn up in the customary form, and containing the usual stipulations. A form will be found in Appendix (I.) The charterer differs from the owner in this: that he may or may not have the possession and exclusive control of the chartered vessel. If he have a demise of the whole vessel, under and by virtue of his charter party, then the charterer is substituted for the owner, has exclusive control, and takes the situation cum toto onere. He is bound to bear all the burthens, and discharge all the duties thus cast upon him, as quasi owner. For all the purposes of manning, victualing, and repairing the ship, he is subrogated for the owner, by every rule and principle of maritime law, as well as of technical law, as administered in the common law courts. CHARTER PARTY AND BILL OF LADING. 355 But these liabilities and responsibilities, however, can only be devolved and imposed upon him by the written agreement, contract, or charter party of the owner, executed agreeably to the local law, and in conformity with the mercantile usages of the country. Such contract, if it be a charter party, may be framed with or without restrictions. It may transfer to a charterer the entire possession of the vessel, or it may lease to him only a portion of the vessel, either for a limited time or for a specific voyage. If only a part of the vessel be chartered, then the legal document defining it, should precisely specify the aliquot part, number of feet, tons or other extent of space or place intended to be so reserved for a shipper's use, under a limited charter party or lease. A shipper, without charter, usually makes his shipment in another's vessel, under and by virtue of a bill of lading, signed by the master as the agent of the owner. This instrument and its commercial value is pretty generally and well understood by the mercantile community; and has been equally well appreciated by courts and the legal profession, since the leading decision upon the subject in the case of Lickbarrow v. Mason. By reference to Appendix (I.) it will be perceived that its preliminary and principal stipulations are, on the one hand, for a sound and stanch ship, expeditious carriage, and safe return; on the other hand, for the payment of a fixed freight or hire, on the vessel's arrival and completion of the voyage at the return port, or within a given number of days after commencing to discharge cargo. In both of these documents, charter party and bill of 356 UNUSUAL STIPULATIONS, ALLOWABLE, BUT NOT FAVORED. lading, stipulations differing from the ordinary provisions and consequently giving to those papers a peculiar and positive character, may be introduced, at the option of the parties. And if, by mutual agreement, such novel stipulations shall be imported, special care should be taken, not only that they be precisely and clearly stated, but that they shall conform to the commercial usages and local law of the country, and shall not be in derogation of the general principles of the maritime. law. In the admiralty, novel and unusual stipulations in commercial documents are not much favored. By the courts they are looked upon with jealousy, and rigidly scrutinized; so that for mercantile men, their better practice would be to follow the Latin maxim, "via trita, via tuta." If merchants incline to enter into such unusual contracts, they must run the risk of prolonged litigation and be content with ultimate pecuniary loss. The usages of trade are well known in commercial States; and this knowledge is faithfully transmitted, from age to age, through the counting-room. Practically, these usages become part of the mercantile education of all those persons who are intended ultimately to engage in mercantile pursuits. They become incorporated into the law, and are judicially recognized and accepted as part and parcel of the law merchant of the world. All novel and unusual stipulations, in charter parties or other commercial instruments, should be measurably avoided, as an unsafe departure from custom, and imprudent in practice. To quit the beaten track is not only experimental but hazardous; and may result in disastrous speculation. Some have asserted that more fortunes have been made by luck than calculation. |