SHIPS AND SKIPPING. 



AND SHIPPING. 



;lic present* of, and attested 

 i (hipping muter, minUter, 

 v; or if there be no nicb 

 onsular offloer, or officer of 

 any will nut w< wri' 

 Meased will be distributed 

 f .liKtriliiition. 

 r both, w the article under 



I or acknowledged by the tostafc 

 by two wHocM**, one of whoa must 

 oiMatlng minister, or curate of th< 

 persons, a justice of the peace, Bril 

 customs. Upon refusal to give effei 

 Mooted, the goods and 0x0*7 ot ( 

 among the next of kin under the stati 

 As to BARATKT by muter or sean 

 that head. 



4. Of At Ctrriage ofGoodiatd Ptutfoym r Mmjtant Skipt, tJu 

 Kigali and Dutia, .( r. of Frriykten and Paarnym, of Omert ami their 

 Sernntt. Tke Oontraet of AJfrrigklmenl.Tbe contracts under which 

 goods are conveyed in a ship are, u has been already stated, of two 

 kinds, the contract by charter-party, and the contract for their con- 

 veyance by a general ship. The former is " 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 charter-party is a written instrument, not necessarily under seal, 

 which i executed by the owners or the master, or the owners and the 

 master of the one part, and by the merchant or his agent of the other put. 

 The word charter-|*rty is derived from the two words charla partita, 

 "divided charter," because the duplicates of the agreement were 

 formerly written on one piece of paper or parchment and afterwards 

 di\ .'led by cutting through some word or figure so as to enable each 

 party to identify the agreement produced by the other. If the charter- 

 party U by deed, and executed by the master, and the owners are not 

 parties to it, they cannot bring a direct action upon the instrument; 

 indeed the owners can never bring an action upon it unless their names 

 appear as the parties executing it But an action may in all cases be 

 brought against the owners for a breach of their duties generally as 

 ship-owners relating to matters not inconsistent with the terms of the 

 charter-party. The charter-party states the port or ports of destina- 

 tion and the freight to be paid, which may be either a gross sum or so 

 much per ton, or so much for each tub'or cask of goods. If the 

 agreement is not to pay a certain sum for the entire ship, or a certain 

 portion of it, but to pay so much per ton, the merchant generally 

 covenants to load a fixed amount or a full cargo. The charter-party 

 generally also states the burden of the ship, but this statement, where 

 there is no fraud, is not binding on the parties. The merchant may 

 load with his own goods or those of others, or he may underlet the ship 

 altogether. The master or owner usually covenants " that the ship 

 shall be tight and staunch, furnished with all necessaries for the 

 intended voyage, ready by a day appointed to receive the cargo, and 

 wait a certain number of days to take it on board. That after lading 

 she shall sail with the first fair wind and opportunity to the destined 

 port (the dangers of the sea excepted), and there deliver the goods to 

 the merchant or his assigns in the same condition they were received 

 on board ; and further that during the course of the voyage [the ship 

 shall be kept tight and staunch, and furnished with sufficient men and 

 other necessaries to the best of the owner's endeavours." The 

 merchant usually covenants to load and unload the ship within a 

 specified time. 



The charter-party dates from the day on which it is delivered or 

 signed. The terms generally used may of course be varied so as to 

 meet the intention of the parties. They cannot be altered or 

 suppressed, or others added by any verbal statements, but they may 

 be explained by evidence of the usage of trade in general, or of that 

 particular trade in reference to which the charter-party is made. The 

 chart* r- party also generally contains two covenants which seem to be 

 who'ly inoperative : one, by which the merchant binds himself and the 

 car ,o ; the other, by which the owner binds the ship and freight in a 

 p ual sum, for the performance of their respective covenants. In an 

 .ction on the charter-party the actual damages proved will determine 

 the amount to be recovered ; and they wUl neither be limited nor 

 extended by the penal sum named ; and although by the general 

 maritime law the ship and freight might be made directly available, 

 there are no means for accomplishing that object in this country. As 

 to the cargo, it is always subject to the general law of lien, unless the 

 parties by their contract expressly discharge it 



Under a contract of affreightment doubt often exists as to whether 

 the goods conveyed are in the possession of the party entitled to the 

 payment, and consequently there is doubt as to his having a lien on 

 the goods. The question to be decided is whether the owner has 

 parted with the possession of his ship. If he has entirely surrendered 

 all control over the ship to the merchant who has chartered her, the 

 merchant must be considered for the time as in possession of the ship. 

 The goods on board, therefore, will be in his possession, not in the 

 possession of the actual owner, who accordingly under such circum- 

 stances will have no lien on the goods for the payment of the freight. 

 But it must clearly appear from the language of the charter-party 

 taken altogether, and explained by the circumstances of the employ- 

 meat of the ship, that it was intended that such a complete demise of 

 the ship should be made, one of the rules of construction being to 

 interpret such instruments " agreeably to the nature of the contract 

 that a prudent shipowner would make." The right of lien always 

 exists where the freight is to be paid before or on the delivery at their 

 place of destination of the goods, or even, as Lord Tenterden himself 

 decided (2 Barn, and Aid., 803), where there is " nothing to show that 



the .delivery of the goods was to precede the payment of that hire." 

 All these difficulties may be avoided by inserting a clause in the 

 charter-party expressly stating whether it is meant that the owner 

 should have a lien upon the lading for his freight and expenses. The 

 owner does not lose his right of lien by depositing the lading ina puMic 

 warehouse, provided be gives notice that it is to be detained until his 

 claim for freight is satisfied. 



If either party U not ready to perform the contract contained in the 

 charter-party by the time agreed on, he is liable to an action for imn- 

 performance of his contract, and the other party may form fresh con- 

 tracts with third persons. 



The charter-]>arty generally contains a clause by virtue of which the 

 freighter in entitled to detain the ship a certain further number of 

 days for the purpose of loading and unloading her, on payment of a 

 fixed sum per day. This payment and the time during which it 

 occurs are both called demurrage : see that article [DEMURRAGE]. 



When a ship or a principal part of it is not let out by charter-party, 

 the owners contract with several merchants respectively for the con- 

 veyance of their goods. A ship so employed is called a general ship. 

 The terms of the contract appear from the instrument called a Mil of 

 lading, two or three of which are signed by the master after the ship 

 has been loaded. If any notice or advertisement relative t the 

 destination of the ship has been issued, care should be taken that these 

 are accurate, otherwise the owners may be liable for the consequences 

 of the misstatement The terms of the bill of lading must be made 

 out according to the direction of the shipper, or, in case a receipt has 

 been given on Jhe delivery of the goods on board, of the holder of the 

 receipt. The form of a bill of lading is stated in a former article. 

 [Bn.L or LADING.] 



The master on signing the bill of lading should not deliver it except 

 in return for the receipt which he may have given for the goodn. By 

 the Bills of Lading Act (18 ft 19 Viet. c. Ill), every bill of lading in 

 the hands of a consignee or indorsee for valuable consideration, repre- 

 senting goods to have been shipped on board a vessel, shall be con- 

 clusive evidence of such shipment as against the master or other 

 person signing the same, notwithstanding that such goods or some part 

 thereof may not have been so shipped, unless such holder of the bill 

 of lading shall have had actual notice at the time of receiving the 

 same, that the goods had not been in fact laden on board ; provided 

 that the master or other person so signing may exonerate himself 

 in respect of such misrepresentation, by showing that it was caused 

 without any default on his part, and only by the fraud of the shipper 

 or of the holder, or some person under whom the holder claims. As 

 between the master or owners and the shippers, the bill of lading is in 

 the nature of a receipt, which is only evidence of the matters which it 

 states, and is subject to be contradicted by proof of the real facts. In 

 case of an action for any breach of their implied contract as carriers, 

 against the master or owners, the party who *wns the goods 

 mentioned in the bill of lading must be the plaintiff. This will be the 

 consignee of the goods, unless the peculiar circumstances of the case are 

 such as to deprive him of that character. If it is considered 

 necessary to make any provisions relative to demurrage, they are 

 generally inserted in the margin of the bill of lading. 



A contract for the conveyance of goods may be rescinded by the act 

 of the parties or by circumstances over which they have no control. 

 If the contract is under seal, it ought, with a view to proceedings in 

 the courts of common law, to be discharged by an instrument of the 

 same nature ; but if the facts show an intention in both parties to 

 rescind the contract, a court of equity will interfere in that behalf. 

 Where xthe goods have been laden and bills of lading signed, the 

 master ought to receive back all the bills of lading or be indemnified 

 against the consequences of having signed them, if the contract of 

 conveyance is to be put an end to : and he has a right, in the absence 

 of any fresh agreement to the contrary, to retain the goods till the 

 freight which be might earn upon them has been paid. If after the 

 contract for conveyance has been entered into, the fulfilment of it 

 becomes unlawful in consequence of some act of the government of 

 the country, such as a declaration of war, a suspension of commercial 

 intercourse, or a prohibition to export, the agreement is dissolved. 

 But nothing short of absolute unlawfulness can excuse the perform- 

 ance of the contract. A contract is not dissolved by the temporary 

 restraint of an embargo, nor, as it seems, of a blockade of the port of 

 departure. But a blockade of the port of destination dissolves the 

 contract, because to sail to a blockaded port with the premeditated 

 intention of breaking the blockade is an offence against the law of nations. 

 If a party has absolutely contracted to furnish a lading for a ship on 

 lier arrival at a foreign port, and is prevented from doing so in con- 

 sequence of any law or regulation merely municipal of the foreign 

 country, this will not excuse the non-performance of his contract : as 

 where the export of the articles contracted to be laden is prohibited, 

 or where intercourse is forbidden in consequence of the prevalence of 

 an infectious disorder. In such cases, and where from any other cause 

 the correspondent of the merchant is unable to furnish a freight, and 

 nves information of that to the master, he cannot, by afterwards 

 remaining at the port the days prescribed, entitle the owners to 

 demurrage. 



Pamengert. In all matters that regard the ship, the master has 

 within the scope of his duty an unlimited authority over the pas- 



