distinguishes this from Hamilton v. Pandorf," in which rats had gnawed a lead pipe, which permitted water to escape and cause damage. The House of Lords held that this was a peril of the sea. The Supreme Court distinguished it on the ground that the water escaped gradually, and therefore was the proximate cause. At first it was thought that a collision caused by the negligence of either of the two vessels was not a peril of the sea, as a human agency intervened. But it is the better opinion that, if the carrying ship is blameless, a collision is a peril of the sea as to her and her cargo, though the other ship was to blame.37 Although the measure of care as to deck cargoes may not be as rigid as to others, yet even there a stipulation against perils of the sea does not protect from a loss caused by negligence.39 "CHARTER PARTIES" DEFINED 83. When the owners of a vessel hire her out, the contract of hire is called a "charter party," and the hirer is called a "charterer." There are many different kinds of charter party in use. The owner hires his ship out for a definite time, as for a month or a year. This is called a "time charter." 39 A voyage charter is one in which he hires her out for a definite trip, as, for instance, a single trip between two points, or a round trip from one port by one or more others back to the initial port. 36 12 A. C. 518. Compare Citta di Palermo, 226 Fed. 529, 141 C. C. A. 285. 37 Xantho, 12 A. C. 503; ante, p. 76. 38 Compania de Navigacion La Flecha v. Brauer, 168 U. S. 104, 18 Sup. Ct. 12, 42 L. Ed. 398. § 83. 39 Mary Adelaide Randall, 39 C. C. A. 335, 98 Fed. 895. Charters vary also according to the manner in which the hire is payable. A "lump sum" charter, for instance, is one in which the charterer pays a fixed price for the ship. The owner gets his money whether the charterer puts any cargo aboard or not. If he can sublet room to shippers at good rates, the charterer makes a profit; otherwise, a loss. It is much the same transaction as renting a house and trying to sublet the rooms. A tonnage charter is where the charterer pays a certain rate per registered ton, or per ton of dead weight carrying capacity.40 Charters vary also with the cargo to be carried. There are grain charters, cotton charters, petroleum charters, coal charters, charters for general cargo, and many others. Though similar in the main, each has its own peculiar provisions growing out of the needs and customs of the particular business. Again, an owner may charter his bare ship, leaving the charterer to furnish a crew, or he may merely charter the use of the ship, furnishing the crew himself. This distinction is important if a question should arise whether the owner or the charterer is responsible for any tort of the crew. If the crew is employed by the owner, then they are his agents, and he is responsible for their acts within the scope of their employment. If they are employed by the charterer, the latter is responsible.11 Charter parties are usually made by shipbrokers, who keep on hand printed blanks of the various kinds, and execute them by telegraphic or cable authority. 40 "Dead weight," in its usual acceptation, means the abstract lifting capacity, not deducting dunnage. Thomson v. Brocklebank, 34 T. L. R. 284. 41 Nicaragua (D. C.) 71 Fed. 723; Bramble v. Culmer, 24 C. C. A. 182, 78 Fed. 497; Clyde Commercial S. S. Co. v. West India S. S. Co., 169 Fed. 275, 94 C. C. A. 551; North Atlantic Dredging Co. v. McAllister Steamboat Co., 202 Fed. 181, 120 C. C. A. 395; Willie, 231 Fed. 865, 146 C. C. A. 61. They are usually in writing, but may be by parol.42 They have grown to be elaborate in their provisions, being an evolution from experience, as suggested by difficulties actually arising. On the other hand, the additions have frequently been made by laymen, who do not always stop to notice how the condition harmonizes with what is already there. Hence, to the lawyers and judges, they appear informal and inartistic; and in RAYMOND v. TYSON,43 the Supreme Court so characterizes them, and says that they are to be liberally construed on that account, placing them in the category of legal instruments which are supposed to be drawn by that constant friend of the legal profession— the man who is inops consilii. CONSTRUCTION OF CHARTER PARTIES 84. A charter party is governed by the ordinary principles of contract law. Provisions which, when violated, defeat the venture, absolve the injured party from the contract. Others, not so vital, give, if violated, a claim for damages. A charter party is, after all but an ordinary contract, and is governed by the rules that apply in the construction of ordinary contracts. Special Provisions in An agreement by the charterer to return the vessel in as good order as received, reasonable wear and tear excepted, or similar language, imposes on him the absolute obligation to return her, independent of any question of due care on his part, unless the failure to return is due to some act or default of the vessel owner.* 44 42 James v. Brophy, 18 C. C. A. 49, 71 Fed. 310; Gormley v. Thompson-Lockhart Co. (D. C.) 234 Fed. 478, 479. 43 17 How. 53, 15 L. Ed. 47. See, also, Disney v. Furness, Withy & Co. (D. C.) 79 Fed. 810, 816. $ 84. 44 Sun Printing & Pub. Ass'n v. Moore, 183 U. S. 642, 22 45 In LOWBER v. BANGS, the instrument contained a provision that the vessel (which, as is often the case, was not at the loading port when the charter was effected), should proceed to the loading port "with all possible dispatch." She did not do so. The court held that, on account of the necessity of promptness in commercial enterprises, this provision was not a collateral clause, whose breach would give rise merely to an action for damages, but that it was a warranty, whose breach avoided the contract and released the charterers. It would also give a right of action for damages against the owners. And a delay in arriving, which made it so late in the season as to prevent the charterer from obtaining insurance, the vessel's agent having represented that she would arrive in time, absolves the charterer.47 48 Quite similar to this was Davison v. Von Lingen. Here the charter party contained a provision that the vessel had "now sailed or about to sail from Benizaf." In fact, she was only one-third loaded, and did not sail for some time. The court held that the charterer could refuse to load her on arrival, and could recover the extra cost of chartering another vessel to carry his cargo. The charter party is given in the opinion. The statement of a vessel's registered tonnage near the beginning of the usual form of charter party is not necessarily a warranty, but may be mere description. In Watts. v. Camors, the description was, "The steamship Highbury, Sup. Ct. 240, 46 L. Ed. 366; Hills v. Leeds (D. C.) 149 Fed. 878; Hahlo v. Benedict, 216 45 2 Wall. 728, 17 L. Ed. 768. See, also, Giuseppe v. Manufacturers' Export Co. (D. C.) 124 Fed. 663. 46 Sanders v. Munson, 20 C. C. A. 581, 74 Fed. 649; Prussia (D. C.) 100 Fed. 484. 47 Oades v. Pfohl (D. C.) 104 Fed. 998. 48 113 U. S. 40, 5 Sup. Ct. 346, 28 L. Ed. 885. 49 115 U. S. 353, 6 Sup. Ct. 91, 29 L. Ed. 406. of the burden of 1,100 tons or thereabouts registered measurement," and there was a provision that she should carry "a full and complete cargo, say about 11,500 quarters of wheat in bulk." The registered tonnage was really 1203, a fact unknown to either party. The court held that the designation of the ship by name and the stipulation as to the cargo negatived the idea that the statement as to tonnage was a warranty, and that the charterers were not justified in refusing to load her. The John H. Pearson 50 was a fruit charter, in which a vessel from Gibralter to Boston engaged to "take the Northern passage." The court held that this was a term of art, and, if none such was known, she should go through the coolest waters to her destination. Culliford v. Gomila 1 contains a grain charter party in the report. In it the vessel guarantied to take 10,000 quarters of grain. The charterers, however, did not stipulate any definite day on which she was to enter upon the charter party, or any definite day when she was to commence loading. When loaded she contained only 9,635 quarters, and the parties to whom the charters had sold the full cargo of 10,000 quarters refused to take it, the market having fallen. Afterwards, the ship, by removing more coal and water ballast, took the full amount. The court held that she had fulfilled her contract, and was not liable to the charterers for their loss. In the Gazelle,52 the charter party contained a clause that the vessel should be ordered to a "safe * * * port, or as near thereto as she can safely get, and always lay and discharge afloat." The charterers ordered her to a port having a bar at its mouth, which she could not cross, the only 50 121 U. S. 469, 7 Sup. Ct. 1008, 30 L. Ed. 979. 51 128 U. S. 135, 9 Sup. Ct. 50, 32 L. Ed. 381. 52 128 U. S. 474, 9 Sup. Ct. 139, 32 L. Ed. 496. See, also, Carbon Slate Co. v. Ennis, 114 Fed. 260, 52 C. C. A. 146; Manchester Liners v. Virginia-Carolina Chemical Co., 204 Fed. 564, 123 C. C. A. 90. |