at large are under to the venerable author of those decisions. They discover a familiar acquaintance with the maritime ordinances of continental Europe, those abundant fountains of all modern nautical jurisprudence. They have investigated the sound principles which those ordinances contain, in a spirit of free and liberal inquiry; and they have uniformly discussed the rights and claims of mariners, under the influence of a keen sense of justice, a strong feeling of humanity, and an elevated tone of moral sentiment. [276] LECTURE XLVII. OF THE CONTRACT OF AFFREIGHTMENT. 1. Of the Charter Party and its Conditions. - A charter party is a contract of affreightment in writing, by which the owner of a ship lets the whole, or a part of her, to a merchant, for the conveyance of goods on a particular voyage, in consideration of the payment of freight. All contracts under seal were anciently called charters, and they used to be divided into two parts, and each party interested took one, and this was the meaning of the charta partita. It was a deed or writing, divided, consisting of two parts, like an indenture at common law. (a) Lord Mansfield observed, that the charter party was an old informal instrument, and by the introduction of different clauses at different times, it was inaccurate, and sometimes contradictory. But this defect has been supplied, by giving it, as mercantile contracts usually receive, a liberal construction, in furtherance of the real intention and the usage of trade. * This mercantile lease1 of a ship describes the parties, the ship, and the voyage, and contains on the part of the *202 (a) Butler, n. 138, to lib. 3, Co. Litt.; Pothier's Charter Party, by C. Cushing, n. 1; Valin's Comm. i. 617. The translation of Pothier's Treatise on Maritime Contracts, by Mr. C. Cushing, and published at Boston, in 1821, is neat and accurate, and the notes which are added to the volume are highly creditable to the industry and learning of the author. But the work was limited to the treatises on Charter Party, Average, and Hiring of Seamen. It would contribute greatly to the circulation and cultivation of maritime law in this country, if some other treatises of Pothier, and also the Commentaries of Valin, could appear in an English dress. Since the third edition of this work, Mr. L. S. Cushing has published, at Boston, a translation of Pothier's Treatise on the Contract of Sale; and if duly encouraged, as we hope and trust he will be, he promises a translation of the other excellent treatises of Pothier on the various commercial contracts. 1 As to when it is a lease and when not, see 138 and n. 1. owner a stipulation as to seaworthiness, and as to the promptitude with which the vessel shall receive the cargo and perform the voyage; and the exception of such perils of the sea for which the master and ship owners do not mean to be responsible. (a) On the part of the freighter, it contains a stipulation to load and unload within a given time, with an allowance of so many lay, or running days, for loading and unloading the cargo, and the rate and times of payment of the freight, and rate of demurrage beyond the allotted days. (b) When the goods of several merchants, unconnected with each other, are laden on board, without any particular contract of affreightment with any individual for the entire ship, the vessel is called a general ship, because open to all merchants; but when one or more merchants contract for the ship exclusively, it is said to be a chartered ship. The ship may be let in whole or in part, and either for such a quantity of goods by weight, or for so much space in the ship, which is letting the ship by the ton. She may also be hired for a gross sum as freight for the voyage, or for a particular sum by the month, or any other determinate period, or for a certain sum for every ton, cask, or bale of goods put on board; and when the ship is let by the month, the time does not begin to run until the ship breaks ground, unless it be otherwise agreed. (c) The merchant who hires a ship may either lade it with his own goods, or wholly underlet it upon his own terms; and if no certain freight be stipulated, the owner will be entitled to recover, upon a quantum meruit, as much freight as is usual under the like circumstances, at the time and place of the shipment. (d) (a) The usual form of the charter party contains the exception to the owner's and master's responsibility, of the "acts of God, or public enemies, detentions and restraints of kings, princes, rulers, and republics, fire, the dangers and accidents of the seas, rivers, and navigation, and all other unavoidable dangers and accidents." (b) Abbott on Shipping, 5th Am. ed. Boston, 1846, part 4, c. 1 secs. 1, 2, 3, 5. The master may let the ship by charter party in a foreign port, as agent of the owner, and without his knowledge; but in the home port, or residence of the owners, their assent is requisite to bind. It is not an incident to the general authority as master, and there must be peculiar circumstances to presume such a superadded agency. Pothier, Charte-Partie, n. 48. The Schooner Tribune, 3 Sumner, 144, 149. (c) Pothier, Charte-Partie, n. 4; Abbott on Shipping, 5th Am. ed. part 4, c. 1. (d) Pothier, Charte-Partie, n. 8; Abbott on Shipping, ib.; Hunter v. Fry, 2 B. & Ald. 421. *It is the duty of the owner of the ship not only to see 203 that she is duly equipped, and in a suitable condition to perform the voyage, but he is bound to keep her in that condition throughout the voyage, unless he be prevented by perils of the sea. (a) If, in consequence of a failure in the due equipment of the vessel, the charterer does not use her, he is not bound to pay any freight; but if he actually employs her he must pay the freight, though he has his remedy on the charter party for damages sustained by reason of the deficiency of the vessel in her equipment. (b) The freighter is bound on his part not to detain the ship beyond the stipulated or usual time, to load, or deliver the cargo, or to sail. The extra days beyond the lay days (being the days allowed to load and unload the cargo) are called days of demurrage; and that term is likewise applied to the payment for such delay, and it may become due by the ship's detention, for the purpose of loading or unloading the cargo, either before, or during, or after the voyage, or in waiting for convoy. (c) If the claim for demurrage rests on express contract, it is strictly enforced, as where the running days for delivering the cargo under the bill of lading had expired, even though the consignee was prevented from clearing the vessel of the goods by the default of others. (d) 1 The old and the new French codes of commerce require the charter party to be in writing, though Valin holds that the contract, if by parol, would be equally valid and binding. (e) (a) Putnam v. Wood, 3 Mass. 481; Ripley v. Scaife, 5 B. & C. 167. (b) Havelock v. Geddes, 10 East, 555. (c) Lawes on Charter Parties, 130. Sunday is included (in the absence of custom) in the computation of the lay days at the port or discharge. Brown v. Johnson, 10 M. & W. 331. The running days in charter parties mean consecutive days, and include Sundays and holidays. But if the contract speaks of working days, Sundays and holidays are excluded. Cochran v. Retberg, 3 Esp. 121; Brown v. Johnson, sup. ; Field v. Chase, Sup. Court, N. Y. 1844, 8 N. Y. Legal Observer, 8. (d) Leer v. Yates, 3 Taunt. 387; Harman v. Gandolph, Holt N. P. 35. The argument is fairly stated, and this rigorous rule ably vindicated, by Mr. Holt, in a note to the case last referred to, and that note was afterwards transferred to his Treatise on Shipping, ii. 17, note. (e) Ord. de la Mar. liv. 3, tit. Des Charte-Parties, art. 1, and Valin's Comm. ib. Code de Commerce, art. 273. The contract for demurrage beyond the lay days is frequently an express covenant in a charter party, binding the cargo for the performance of the covenant to pay demurrage, as well as of the covenant to pay freight; and 1 See 206, n. 1. *204 * In the English law, the hiring of ships without writing is undoubtedly valid;1 but it would be a very loose and dangerous practice, at least in respect to foreign voyages. In the river and coasting trade there is less formality and less necessity for it; and the contract is, no doubt, frequently without the evidence of deed or writing. (a) If either party be not ready by the time appointed for loading the ship, the other party, if he be the charterer, may seek another ship, or, if he be the owner, another cargo. This right arises from the necessity of precision and punctuality in all maritime transactions. By a very short delay, the proper season may be lost, or the object of the voyage defeated. And if the ship be loaded only in part, and she be hired exclusively for the voyage, and to take in a cargo at certain specified rates, the freighter is entitled to the full enjoyment of the ship; for he is answerable to the owner for freight, not only for the cargo actually put on board, but for what the vessel could have taken, had a full cargo been furnished. (b) The master has no right to complete the lading with the goods of other persons without the consent of the charterer; and if he grants that permission, the master must account to him for the freight. He has no right to complain, if the charterer refuses to grant the permission, or complete the lading, provided he has cargo enough to secure his freight. This was the regulation of the French ordinance, and it has been adopted into the new code. (c) By the contract, the owner is bound to see that the ship be seaworthy, which means that she must be tight, stanch, and strong, well furnished, manned, victualled, and, in all *205 respects, equipped in the usual manner for the merchant service in such a trade. (a) The ship must be fit and * the lien is the same in both cases, unless subsequently waived by some explicit act on the part of the owner. See the case of the Volunteer, 1 Sumner, 551. [Post, 206 n. 1.] (a) Molloy, de Jure Mar. b. 2, c. 4, sec. 3; Boulay-Paty, ii. 268, 269. (b) Duffie v. Hayes, 15 Johns. 327. (c) Ord. du Fret, art. 2; Pothier, Charte-Partie, n. 20, 21, 22, 24, 25; Code de Commerce, n. 287. (a) Emerigon, i. 873, 374, 375; Abbott on Shipping, 5th Am. ed. Boston, 1846, pp. 417-421. [See The Sarah, 2 Sprague, 31.] 1 Lidgett v. Williams, 4 Hare, 456, 462. |