I DO HEREBY CERTIFY that I have compared the foregoing copy of a [naming the instrument], [and of the indorsements thereupon], with the originals now remaining on file in this office, and that the same are correct transcripts therefrom, and of the whole of said originals. [Official seal.] IN TESTIMONY WHEREOF, I have hereunto set my hand and [Signature and title of officer.] STATE OF NEW York, 455. Certificate to Copy of Record. Secretary's Office. S I HAVE Compared the preceding with a certain indenture recorded in this office, in Book of Deeds, No. , page etc., and do certify that the same is a correct transcript therefrom and of the whole of said indenture. [Here note any alterations in the manuscript, if any there be―e. g., thus : one line interlined at the top of page 2, before making this certificate.] IN TESTIMONY WHEREOF, I have hereunto affixed the seal of I, M. N., clerk of the said county, do hereby certify that O. P., the person subscribing the foregoing [here designate the instrument], and before whom the same was taken, was, on the a judge of the Court of day of a court of record of the said county of [or other officer, as the case may be], and that I am well acquainted with the Charter Parties. handwriting of the said O. P., and verily believe that his name subscribed to the said certificate is his proper and genuine signature. [Attestation, signature, etc., as in preceding form.] [For a form of certificate of official character, including the due execution of the instrument according to the laws of the place, see chapter on AоKNOWLEDGMENTS, Forms 53 and 141.] CHAPTER XX. CHARTER PARTIES. A charter party is a contract of affreightment in writing, by which the owner of a ship or other vessel lets the whole, or a part of her, to a merchant or other person, for the conveyance of goods, for a particular voyage, or period of time, in consideration of the payment of freight. The instrument ought to contain: 1. The name and tonnage of the vessel. 2. The name of the captain. 3. The names of the letter to freight and the freighter. 4. The place and time agreed upon for the loading and discharge. 5. The price of the freight. 6. The demurrage or indemnity in case of delay. 7. Such other conditions as the parties may agree upon.(a) Important differences in reference to the rights and liabilities of the parties, not only as between themselves, but as respects consignors and consignees, and persons furnishing supplies and repairs, depend upon the question whether the charter party reserves to the owner the right of possession and of control, or divests him of it, and gives it to the freighter, so as to make the latter the owner pro hac vice. In the absence of express words on this point, it is to be determined as a question of construction upon the whole instrument, whether the owner intended to part with possession.(b) Where the owner of a vessel charters her for a voyage, equips her himself, hiring and paying the crew, and furnishing them with provisions, and reserving room for them and the provisions, the hirer is not owner of the vessel pro hac vice, but the original ownership continues. Where, by the terms of the charter, the ship-owner appoints the master and mariners, and retains the management and control of the vessel, the charter is rather to be considered as a covenant to carry goods. Where, however, the whole management is given over to the freighter, it is more properly a hiring of the vessel for the voyage; and in such case the hirer is deemed owner pro hac vice.(c) 457. Charter party reserving possession to the owner 458. Charter party giving possession to the hirer.. 221 223 (a) Abbott on Shipping, Part iii., ch. 1. Cranch, 39; McIntyre v. Bowne, 1 Johns., (b) Clarkson v. Edes, 4 Cow., 470. 229; 1825, Clarkson v. Edes, 4 Cow., 470; (c) Macardier v. Chesapeake Ins. Co., 8 Williams v. Johnson, 11 Barb., 501. Common Form. 457. Charter Party Reserving Possession to the Owner. THIS CHARTER PARTY, made the day of sand eight hundred and in the year one thoubetween A. B., master and part owner [or, agent for the owners, or otherwise, as the fact may be] of the ship [or other vessel, naming it], of of which is master, of the burden of tons or thereabouts, (d) register measurement, now lying in the harbor of of the first part, and Y. Z., of in the State of merchant, of the second part, WITNESSETH: that the said party of the first part, for and in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the second part, does covenant and agree on the freighting and chartering of the said vessel unto the said party of the second part, for a voyage from [he describe the voyage-e. g., thus:] the port of M. to N., and return to M., and on the terms following-that is to say: 1. The said party of the first part engages that the said vessel, in and during the said voyage, shall be kept tight, staunch, well-fitted, tackled, and provided with every requisite, and with men and provisions necessary for such a voyage. 2. The said party of the first part further engages that the whole of the said vessel (with the exception of the cabin, the deck, and the necessary room for the accommodation of the crew, and the stowage of the sails, cables, and provisions)(e) shall be at the sole use and disposal of the said party of the second part during the voyage aforesaid; and that no goods or merchandise whatever shall be laden on board, otherwise than from the said party of the second part, or his agent, without his consent, on pain of forfeiture of the amount of freight agreed upon for the same.(ƒ) 3. The said party of the first part further engages to take and receive on board the said vessel, during the aforesaid voyage, all such lawful goods and merchandise as the said party of the second part, or his agents, may think proper to ship (under and on deck]. (d) Describing the vessel in the charter party as of the burden of a specified number of tons, or thereabouts, is a description and not a warranty; and if it is not fraudulently inserted, and does not entrap the charterer into the bargain, it will not vitiate the contract, although the vessel be of considerably less burden, and although shipments could not be so readily obtained, or insurance upon cargo so readily effected in a vessel of such size, as in one of the size stated in the charter party. Ashburner v. Balchen, 7 N. Y. (3 Seld.), 262. (e) Such a provision as this contemplates not merely accommodations absolutely necessary and literally indispen sable, but that the officers and crew are to be accommodated in the mode adapted or fitted to their station, the character of the vessel and the nature of the voyage being taken into consideration. Almgren v. Dutilh, 5 N. Y. (1 Seld.), 28. (f) Where the charter party contains such provisions as the two foregoing, which are in the usual form, and the owners appoint the master, they are deemed to continue in possession, and may have a lien for their charter money upon all merchandise. Holmes v. Pavenstedt, 5 Sandf., 97, and cases cited; McTaggart v. Henry, 3 E. D. Smith, 390; Williams v. Johnson, 11 Barb., 501. Common Form of Charter Party. 4. And the party of the first part agrees to proceed with all dispatch from M. direct to N., and return to M., and there discharge the cargo aforesaid. [Here may be inserted any special stipulations which may be agreed as to the use of the vessel-e. g., the following:] The party of the second part is to have the use of the cabin for passengers, and to carry, if desired, steerage passengers on the between-deck, and to provide for the same himself. [Or thus: It is further agreed, that the vessel takes one passenger, free of expense, he furnishing all his extra stores, etc. It is also further agreed, that the vessel takes out, on deck, eight to ten horses, the party of the second part fitting up stalls, and furnishing every thing necessary for their accommodation.] And the said party of the second part, for and in consideration of the covenants and agreements to be kept and performed by the said party of the first part covenants and agrees, with the said party of the first part, to charter and hire the said vessel as aforesaid, on the terms following—that is to say: 1. The said party of the second part engages to provide and furnish to the said vessel a full cargo of lawful merchandise, or at least sufficient for ballast. 2. The said party of the second part further engages to pay to the said party of the first part, or his agent, for the charter or freight of the said vessel during the voyage aforesaid, in manner following-that is to say: [here set forth the terms agreed on—e. g., thus:] dollars, payable upon delivery of her cargo at M. The party of the first part is to pay all the expenses of the vessel, including port charges and stevedore bills. [Or thus: dollars per calendar month, and so in proportion for a less time, so long as the said vessel shall be continued in the aforesaid service, such payment to be made in the manner following-that is to say: Charter payable upon termination of the voyage, except so much as the captain may require for his disbursements in foreign ports, which is to be advanced on account of this charter, free of commissions. And the said party of the second part further engages to pay all the foreign port charges on the vessel during the aforesaid voyage, including lighterage, pilotage, and consuls' fees.] It is further agreed between the parties to this instrument, that the said party of the second part shall be allowed for the loading and discharging of the vessel at the respective ports aforesaid, lay days as follows-that is to say: dispatch loading and discharging at the port of and [running(g)] days at the port of ; and in case the vessel is detained, the said party of the second part agrees to pay to the said party of the first part, demurrage at the rate of dollars per day, day by day, for every day so detained, provided such detention shall happen by default of the said party of the second part, or his agent. (g) A provision for "running days" is, in effect, a positive stipulation by the freighter that he will load and unload within the time mentioned. An inevitable accident does not excuse him. Field v. Chase, Hill & D. Supp., 50; S. C., N. Y. Leg. Obs., 8. Charter Party making Hirer the Owner for the Voyage. It is also further understood and agreed, that the cargo or cargoes shall be received and delivered alongside of the vessel, within reach of her tackles, or according to the customs and usages at the ports of loading and discharging. It is also further understood and agreed, that this charter shall commence(h) when the vessel is ready to receive cargo at her place of loading, and notice thereof is given to the party of the second part, or to his agent [and terminate on the return of the vessel and the discharge of her cargo at the last port of delivery]. It is also further understood and agreed, that the risks and responsibil ities assumed by the party of the first part are solely and only those of his neglects or omissions, and of that of his servants. And that all and every other of the risks, hazards and contingencies of the elements and navigation, of all and every class, character and description, are assumed and to be borne by the party of the second part. (i) [Here any special stipulations may be inserted, such as the following :] It is understood that the vessel is to carry out to N., tons measurement of assorted cargo, or more if she can, provided that she is not in any case to draw over feet of water, and to bring back hogsheads of sugar, or its equivalent, or more if she can, provided that she is not in any case to draw more than feet of water. To the true performance of all and every of the foregoing covenants and agreements, the said parties, each to the other, do hereby bind themselves, their heirs, executors, administrators and assigns (especially the said party of the first part the said vessel, her freight, tackle and appurtenances; and the said party of the second part, the merchandise to be laden on board), each to the other in the penal sum of dollars. IN WITNESS WHEREOF, the said parties have hereunto interchangeably set their hands and seals, the day and year above written. Signed, sealed, and delivered) ered} in the presence of [Signatures and seals.] 458. Charter Party Giving Possession to the Hirer. THESE ARTICLES OF AGREEMENT made and entered into this , A. D. 18 by and between A. B., of of the city of of day of of the one part, Y. Z., of the other part, WITNESSETH: the said party of the first part has this day chartered and hired unto the said party of the second part the steamboat [designating her port], and of the burden of tons, or thereabouts, with all the appurtenances, cables, anchors, chains, etc., which belong to said steamboat, for the term of months, from the day of to be delivered at the port of (h) If the charter party fixes a day for the vessel to be in readiness, it may be regarded as a condition precedent, if upon the whole instrument such appears to be the clear intent of the parties. Weisser v. Maitland, 8 Sandf., 818. (i) As to such a clause, see note (j), infra. 1 |