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island of Ceylon and certain parts of the East Indies, is now the law upon this subject.

This Act, which came into operation on the 1st of October, 1855, applies to every passenger ship proceeding on any voyage from the United Kingdom to any place out of Europe, and not within the Mediterranean Sea, and on every colonial voyage, such as it describes. It is to be carried into effect by the Colonial Land and Emigration Commissioners (y).

The expression" Passengers" in it is declared by section 3 to include all passengers except cabin passengers, and except labourers under indenture to the Hudson's Bay Company, and their families, conveyed in ships, the property of and chartered by the said Company; and no persons shall be deemed cabin passengers unless the place allotted to their exclusive use shall be in the proportion of at least thirty-six clear superficial feet to each statute adult, nor unless they shall be messed together throughout the voyage at the same table with the master or first officer of the ship, nor unless the fare contracted to be paid by them respectively shall be in the proportion of at least 30s. for every week of the length of the voyage, as computed under the provisions of the Act for sailing vessels proceeding from the United Kingdom to any place south of the Equator, and of 20s. for such vessels proceeding to any place north of the Equator, nor unless they shall be furnished with a duly signed contract ticket in a prescribed form.

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A great variety of provisions are enacted by it, having for their object the protection from imposition, the number, health, medical care in sickness, diet, berthing, and safety of the passengers; the rights of passengers ;" the return of their passage money, and compensation if a passage be not provided pursuant to contract; their maintenance for a period after their arrival; the construction, ventilation, and internal arrangements and survey of the ship; the number of boats, life-boats, and life-buoys it must carry; the computation of voyages; the quantity of water and provisions to be provided for each statute adult passenger-i. e., of the age of twelve years or upwards; the licensing of passage brokers, and other miscellaneous matters, for the detail of which the reader is referred to the Act in the Appendix. By sect. 59, power is given to her Majesty in council to prescribe rules for preserving order and securing cleanliness and ventilation on board the ship; and by sect. 87, to the Governor-General of India in council (by any Act to be passed for that purpose), to adopt its provisions for India.

This Act was amended by the 26 & 27 Vict. c. 51, in several particulars, among which the more important are those which repeal the definition of a passenger ship, which is now declared to signify

(y) It has been held by the Court of Queen's Bench that an emigration officer appointed under the 15 & 16 Vict. c. 44, is justified under sect. 26 in refusing to certify that the requirements of the Act have been complied with, if he, acting bonâ

fide, is of opinion that the ship has too much cargo on board and is too deep in the water, although none of the articles prohibited in that section are on board. Steel v. Schomberg, 4 E. & B. 623; 24 L. J. Q. B. 87.

every description of sea-going vessel, whether British or foreign, carrying, upon any voyage to which the provisions of the amended Act extend, more than fifty passengers, or a greater number of passengers than in the proportion of one statute adult to every thirty-three tons of registered tonnage if propelled by sails, or than one statute adult to every twenty tons if propelled by steam;-those which repeal, under limit and regulation, the prohibition to carry horses and cattle in passenger ships;-those which extend the provisions respecting passengers landed on account of sickness to cabin passengers; those which relate to providing a passage and a maintenance, until it be found, in case of wreck or damage to the passenger ship before or after the commencement of the voyage, or when taken or brought back on account of such damage to a port of the United Kingdom;-and those which provide for the forwarding to his destination of any passenger or cabin passenger from any colonial or foreign port or place other than that in which he had contracted to land. To obtain any useful knowledge, for purposes of action or advice, of these enactments, and of those of the Passengers Act, it is necessary that the reader should refer to the very words of the

statutes.

4. Passenger Steamers.

The Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104, contains also provisions relating to the build, equipment, inspection, survey, and certificates of passenger steam-ships (that is, all British ships carrying passengers between any place or places in the United Kingdom, except steam ferry-boats or "bridges" working in chains)-the number of passengers they are certified to carry-the build of iron steamers, their engines, boats, life-boats, life-buoys, and provisions to prevent the danger of collision, some of which will be noticed in the chapter on "Collision," the reader being referred for the remainder to the Act (2).

5. Provisions for the Prevention of Misconduct and Accidents on board Passenger Ships.

With respect to misconduct and the maintenance of order on board passenger ships, it is enacted, that persons who, having been refused admission into, or who refuse to quit a steamer on being requested so to do, on account of its being full (the full amount of their fares, if paid, being returned or tendered to them), incur a penalty not exceeding 40s., to be paid to the owner (a).

Any person who travels in any passenger steamer which has been duly surveyed without having paid his fare, or proceeds beyond the distance for which he has paid without paying the additional fare, with intent to avoid such payments, or who wilfully refuses to quit

(1) Sects. 291-329.

(a) Sect. 322.

such steamer at the point to which he has paid his fare, incurs a penalty of 58., payable to the owner, in addition to the fare (b).

The master of any home-trade passenger steam-ship may refuse to receive, or may put ashore at any convenient place without returning his fare, any person who, by reason of drunkenness or other cause, is in such a state, or misconducts himself in such a manner, as to cause annoyance to other passengers (c).

The master is not bound to receive or carry in any ship goods of a dangerous nature, or parcels which he suspects to contain goods of a dangerous nature, and may cause such parcels to be opened to ascertain the fact; and any person who carries or sends by any ship any such goods, without distinctly marking their nature outside the package, or giving notice to the master or owner, is liable to a penalty of 1001. (d). The owner or master of any steam-ship, which has sustained or caused any accident occasioning loss of life, or any serious injury to any person, or has received any material damage affecting her seaworthiness, is required, under a penalty of 507., within twenty-four hours, or as soon thereafter as possible, to send a report of the particulars thereof to the Board of Trade (e).

The owner of any steam-ship, the loss of which, owing to her nonappearance or other circumstance, he has reason to apprehend, is required, under the same penalty, to send notice thereof within a reasonable time to the Board of Trade (f).

And in every case of collision, in which it is practicable to do so, the master is required, under a penalty of 201., to enter, immediately after the occurrence, a statement thereof and of its circumstances in the official log-book (if any), to be signed by himself, and by the mate or one of the crew (g).

For the penalties to which drunken and disorderly passengers on board passenger steamers, and persons molesting passengers, and forcing themselves on board, or refusing to quit the steamer, when it is full, or avoiding the payment of their fares, or injuring the steamer, or molesting its crew, the reader is referred to the Act (h).

(b) Sect. 323. (c) Sect. 325.

(d) Sect. 329.
(e) Sect. 326.

(f) Sect. 327. (h) 25 & 26 Vict. c. 63, s. 35. (y) Sect. 328.

PART THE FOURTH.

OF THE CARRIAGE OF GOODS IN MERCHANT SHIPS.

CHAPTER I.

OF THE CONTRACT OF AFFREIGHTMENT BY CHARTER-PARTY; AND

HEREIN,

SECT. 1. Of the Instrument of Contract by Charter-party, p. 196.

2. Of the usual Contents thereof. Stipulations as to Voyage, Freight, Burthen, of Ship, &c., p. 200.

3. Of Stipulations as to Time for providing and receiving Cargo, p. 204.

4. Construction of Charter-parties, p. 205.

5. Of Covenants in Charter-parties. Conditions precedent, p. 221.

6. Evidence of Usage of Trade, when admitted in their Interpretation, p. 231.

7. Bills of Lading for Goods shipped under Charter-party, p. 235.

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 in 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 letter; or one part-owner may let his share to another. But contracts of this nature do not form the subject of the present inquiry. Charter-parties are usually in writing, and when in writing generally require a stamp (a).

The term charter-party is understood to be a corruption of the Latin words charta-partita (b); 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

(a) 5 & 6 Vict. c. 79; 5 & 6 Vict. c. 82 (Ireland). For a charter-party in the form prescribed by the Passengers Act, 18 & 19 Vict. c. 119, s. 71, no stamp is required. The time for stamping it with the proper duty is limited to fourteen days from its date or after it was first executed or signed by the first party. Sects. 21, 34. Where a charter-party which had been left within the proper time at a district stamp-office, and with the proper duty and postage, that it might be sent up to London to be stamped at the proper office, was mislaid, and it could not be again found, secondary evidence of its contents was

admitted, upon proof that in the usual course of business it would have been sent up from the district office to the office in London. Closmadeuc v. Carrel, 18 C. B. 36; 25 L. J. C, P. 216.

(b) 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

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 out of this species of contract, for distinct chapters hereafter.

1. Of the Instrument of Contract by Charter-party.

This instrument, when the ship is let at the place of the owners' residence, is generally executed by them, or some of them (and frequently by the master also), and by the merchant or his agent (s).

In a foreign port a charter-party, if it be by deed under seal, which is often the case, must, of necessity, 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.

I have before observed, that the execution of a charter-party 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. This depends upon a technical rule of the law of England (t), 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 (u). The agent, indeed, either of the owner or merchant may,

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.

(s) When charter-parties are not under seal, the ordinary rules as to contracts entered into by agents apply to them. See Higgins v Senior, 8 M. & W. 834; Humble v. Hunter, 12 Q. B. 310; Schmalz v. Avery, 20 L. J. Q. B. 229; Jenkinson v. Hutchin

son, 13 Q. B. 744; Carr v. Jackson, 7 Exch. 382; Smith v. McGuire, 3 H. & N. 555; 27 L. J. (N. S.) 465, Exch.

(t) Harrison v. Jackson and others, 7 Term Rep. 207, and Horsley v. Rush and another (the case of a charter party), there cited.

(u) 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. and another v. Backe, 2 East, 142.

Wilks

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