THE contract of affreightment is usually embodied either in a charter-party, or in a bill of lading, but in many cases there is both a charter-party and a bill of lading. The most important terms of this contract where its object is the carriage of goods in a merchant ship are those which regulate, on the one hand, the conveyance of the goods by the shipowner, and, on the other, the payment of the freight, which is the usual consideration for the shipowner's share of the undertaking. The contract by charter-party differs in many important respects from that by bill of lading; but as the rules which regulate the payment of freight under both of these contracts. are substantially the same, it would be inconvenient to divide this portion of the subject into two distinct parts. It is therefore proposed to consider, 1, the contract by charterparty, the general rules by which it is governed, and the remedies for its enforcement; 2, the contract for the carriage of goods shipped under a bill of lading, and the ordinary rights and liabilities resulting from it; and 3, the right to freight generally, both under charterparties and under contracts by bill of lading, and the important incidents connected directly with this right; including the remedies for recovery of freight, and the shipowner's lien in respect of it. The second part of this Chapter will then be devoted to the consideration of the subjects of Demurrage, Stoppage in transitu, and General average. First, as to the contract by charter-party. The charter-party (carta partita) is an agreement by which a CHARTERshipowner agrees to place an entire ship, or a part of it, at the PARTY. disposal of a merchant for the conveyance of goods, binding the shipowner to transport them to a particular place for a sum of money which the merchant undertakes to pay as freight for their carriage (a). (a) See Pothier, Contrat de Louage Maritime, Pt. 1. Charter-parties are usually effected by the agency of brokers who are employed by the shipowner and paid by a commission. See The Nuova Raffaelina, L. R., 3 A. & E. 483; Cross v. Pagliano, L. R., 6 Ex. 9. See also Burnett v. Bouch, 9 C. & P. 620; Cunard v. Van Oppen, 1 F. & F. 716; Allan v. Sundius, 1 H. & C. 123; Gibson v. Crick, ib. 142. A charter-party seldom amounts to an actual demise of the ship. See Fenton v. The Dublin Steam M.P. Packet Company, 8 A. & E. 835; Sande- U Nature of contract. Stamps. Example of form of charter party. Charter-parties may be, but now usually are not, under seal. They embody the terms upon which the shipowner lends the use of the ship, and contain stipulations as to the rate of remuneration, the nature of the voyage, and the time and mode of employing the vessel. Every charter-party, or agreement, or contract for the charter of any ship, and every memorandum, letter or other writing between the captain, master or owner of any ship and any other person, for or relating to the freight or conveyance of any money, goods, or effects on board any ship, must be stamped with a sixpenny stamp (). The duty may be denoted by an adhesive stamp, which must be cancelled by the person by whom the instrument is last executed or by whose execution it is completed as a binding contract. Where a charter-party is first executed out of the United Kingdom any party thereto may, within ten days after it has been first received, and before it has been executed by any person in the United Kingdom, affix an adhesive stamp denoting the duty, and at the same time cancel (c) such stamp, and the instrument shall be deemed duly stamped. A charter-party not duly stamped may be stamped with an impressed stamp within seven days after the first execution thereof on payment of the duty and a penalty of 4s. 6d. ; after seven days and within one month, on payment of the duty and a penalty of 10l. (d). The following form of charter-party will show many of the stipulations in ordinary use:— It is this day mutually agreed between Messrs. [4. B.], agents for owners of the good ship or vessel called [The James Scott], A 1, 12, and newly coppered, of &c., of the burthen of 340 tons register measurement or thereabouts, whereof [C. D.] is master, now in [Liverpool], and Messrs. [E. F., of Liverpool, merchants,] that the said ship being tight, staunch and strong, and every way fitted for the voyage, shall with all convenient speed load in [Prince's (b) 33 & 34 Vict. c. 97, Schedule. A guarantee for the performance of a charter-party does not require to be stamped; Rein v. Lane, L. R., 2 Q. B. 144. (c) He should cancel the stamp by writing his name or initials, or the name or initials of his firm, on or across the stamp, together with the true date of his so writing; 33 & 34 Vict. c. 97, 8. 24. (d) 33 & 34 Vict. c. 97, ss. 66, 67, 68. or Salt House Dock] a full and complete cargo of lawful merchandize, not exceeding 400 tons in weight, and therewith proceed to [Hong Kong or Shanghai], as ordered before sailing, or so near thereunto as she may safely get, and there deliver the same agreeably to bills of lading; after which she shall load there, or, if required, proceed to one other safe port in [China], and there load in the usual and customary manner from the agents of the said charterers a full and complete cargo of tea or other lawful merchandize, the cargoes being brought to and taken from alongside the vessel at charterers' risk and expense (e) : which the said merchants bind themselves to ship,-not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions and furniture, and being so loaded shall therewith proceed to [Liverpool or London], as ordered on signing bills of lading abroad, or so near thereunto as she may safely get (ƒ), and there deliver the same in the usual and customary manner to the said charterers or their assigns, they paying freight for the same at the rate of [77. 10s. sterling per ton of fifty cubic feet] for tea delivered, for the round out and home; a deduction of [58. per ton] to be made if ship be discharged and loaded at [Hong Kong]: other goods, if shipped, to pay in customary proportion; in consideration whereof the outward cargo to be carried freight free; payment whereof to become due and be made as follows:-[8001. on sailing, by charterer's acceptance at three months' date, what money the master may require for the ordinary disbursements of the vessel at her port of discharge and loading abroad, free of interest, paying two and a half per cent. commission, subject to insurance, at the current rate of exchange, and the balance on the unloading and right delivery of the cargo, by good and approved bills on London at two months' date, or cash equal thereto.] Ship is to have liberty to put on board eighty tons of kentledge copper drop or other dead weights, and (e) In the place of this clause the following is sometimes made use of: 66 Cargo to be brought to and taken from alongside free of expense and risk to the ship." See Wright v. New Zealand Shipping Company, 4 Ex. D. 165. (f) See as to the meaning of this clause, Parker v. Winlow, 7 E. & B. 942; Bastifell v. Lloyd, 1 H. & C. 388; Nelson v. Dahl, 12 Ch. D. 568; Capper v. Wallace, 5 Q. B. D. 163, and the cases there cited. See also Hayton v. Irwin, 5 C. P. D. 130. See also post, p. 316. Construction of contract. to retain it on board during the voyage. Thirty running days (Sundays excepted) are to be allowed the said merchant, if the ship is not sooner despatched, for loading in [Liverpool], and forty-five like days for all purposes abroad, and ten days on demurrage over and above the said laying days and time herein stated [at 101. sterling per day], paying day by day as the same shall become due (g). The time occupied in changing ports not to count as laying days. Should it be necessary for the vessel to take in dunnage the same to be provided by the owners. The master to sign bills of lading at such rates of freight as may be required by the agents of the charterers, without prejudice to this charter-party (h); and the owners to have an absolute lien upon the cargo for the recovery of all freight, dead freight, demurrage, &c., due to the ship under this charter-party. The act of God, the Queen's enemies, fire, and all other damages and accidents of the seas, rivers and navigations, of what nature and kind soever, throughout the voyage being excepted. The vessel to be consigned to the charterer's agents abroad free of commission. On the return of the ship to [Liverpool] she shall be addressed to [G. H. & Co.] brokers, or to their agents at any port of discharge. Penalty for non-performance of this agreement the estimated amount of freight (i). Charter-parties are construed liberally and reasonably, so as to carry out the intention of the parties as apparent on the instrument (). It is often, however, difficult to apply this rule in (9) A clause to the following effect is sometimes now inserted: "The cargo is to be discharged with all despatch according to the custom of the port.' See Postlethwaite v. Freeland, 4 Ex. D. 155, and in Dom. Proc. 1880. It is sometimes provided that demurrage shall not be payable where delay in loading or discharging has been occasioned by circumstances beyond the control of the merchants, and in some cases the charter stipulates that despatch money at so much per hour shall be paid on any time saved in loading or discharging. See Laing v. Hollway, 3 Q. B. D. 437. (h) See as to the construction of this clause, Shand v. Sanderson, 4 H. & N. 381; Kern v. Deslandes, 10 C. B., N. S. 205; Pearson v. Goschen, 17 C. B., N. S. 352, and post, p. 319. (i) See Gilkison v. Middleton, 2 C. B., N. S. 134, and post, p. 402. (k) Oshey v. Hicks, Cro. Jac. 263; Marshall v. De la Torr, 1 Esp. 368. See also the judgment of Lord Mansfield in Hall v. Cazenove, 4 East, 477, Soames v. Lonergan, 2 B. & C. 564, the judgment of Maule, J., in Crozier v. Smith, 1 M. & Gr. 415, Browne v. Burton, 17 L. J., Q. B. 49, the judgment of Byles, J., in Valente v. Gibbs, 6 C. B., consequence of the short and ambiguous terms in which these contracts are not uncommonly expressed. If the charter-party is under seal, the parties, as in the case of other deeds, are not estopped from showing that it was executed on a day different from the day of its date. It will also, in this case, like any other deed, speak from its delivery or execution, and not from its date; and words indicating time by relation will be construed to relate to the delivery or execution, and not to the date, unless it be referred to in terms; and even then, the same rule of construction will be applied if the date is an impossible one (m). It is for the Court to construe all written contracts, but if particular words have obtained by mercantile or other usage a peculiar meaning, it is for the jury to say what the meaning of these expressions is, and then for the Court to decide on the meaning of the contract (n). In charter-parties, as in other mercantile contracts, the expression "a month" is construed to mean a calendar month (o). It is important to recollect, that although mercantile contracts are construed liberally and reasonably, their express terms cannot be extended by implication. Therefore, where a contract N. S. 286, and Dimech v. Corlett, 12 Moo. P. C. C. 199. It is important to bear in mind, that although in the earlier cases the Courts of law not unfrequently rejected, or explained away harsh and oppressive stipulations contained in agreements, thus, in effect, making new contracts for the parties, the rule acted upon at present is to give to clear and unambiguous stipulations their obvious meaning, without reference to the possible hardship of the consequences. This rule, which is founded in good sense, and tends to make persons careful at the time when they are entering into contracts, is thus referred to in a recent judgment of the Court of Queen's Bench. "We are clear," said that Court in Stadhard v. Lee, 3 B. & S. 364, "that where from the whole tenor of the agreement it appears that however unreasonable and oppressive a stipulation or condition may be, the one party intended to insist upon and the other to submit to it, a Court of justice cannot do otherwise than give full effect to the terms which have been agreed upon between the parties. It frequently happens in the competition which notoriously exists in the various departments of business, that persons anxious to obtain contracts submit to terms which when they come to be enforced appear harsh and oppressive. From the stringency of such terms, escape is often sought by endeavouring to read the agreement otherwise than according to its plain meaning, but the duty of a Court in such cases is to ascertain and give effect to the intention of the parties as evidenced by the agreement, and though where the language of the contract will admit of it, it should be presumed that the parties meant only what was reasonable, yet if the terms are clear and unambiguous, the Court is bound to give effect to them without stopping to consider how far they may be reasonable or not." (m) Hall v. Cazenove, 4 East, 477; Steele v. Mart, 4 B. & C. 272; Styles v. Wardle, ib 908. (n) Smith v. Bland, Ry. & M. 260; Hutchison v. Bowker, 5 M. & W. 535 ; Smith v. Thompson, 8 C. B. 44. See Alexander v. Vanderzee, L. R., 7 C. P. 530; Ashforth v. Redford, L. R., 9 C. P. 20; Shand v. Bowes, 1 Q. B. D. 470, 2 App. Ca. 455. (0) Jolly v. Young, 1 Esp. 186; see also Simpson v. Margitson, 11 Q. B. 23. |