not relieved from his ordinary duty to load the ship (u). And where a charter-party contained a provision that the charterers should be at liberty to employ stevedores and labourers to assist in loading cargo, but that such stevedores and labourers, being under the control and direction of the master, the charterers were not to be responsible to the owners for damage or improper stowage, it was held that there was nothing in the charter-party to exonerate the shipowners from responsibility for negligent and improper stowage by the stevedores employed by the charterer (x). party as to in charterbills of lading. The general obligation of the master with reference to signing Stipulations bills of lading for goods laden on board is considered else where (y); but it is necessary to note here that the master must act in accordance with the provisions of the charter-party. Thus, he has no authority to sign bills of lading at a freight less than the chartered freight in the absence of express provisions in the charter-party (z). But it not unfrequently happens that the charter-party provides that bills of lading shall be signed by the master as presented to him, at any rate of freight, without prejudice to the charter-party (a). In such cases the master is, of course, bound by the terms of the charter-party, and if he refuses to sign bills of lading as presented, he renders the owners liable for breach of contract (b). There is no duty on the charterers, in the absence of custom or express contract, to hand over to the shipowners copies of the bills of lading of the goods put on board (c). It seems that a person who has shipped goods may re-demand Right of shipthe goods a reasonable time before the ship sails, on payment of per to re-demand goods. the freight which would become due, and indemnifying the master against the consequences of any bills of lading signed for the goods (d). The charter-party often contains stipulations that the cargo shall be delivered at one of several ports as ordered, or at a safe port within specified limits, and that the ship shall call at a port (u) The Anglo-African Company v. Lamzed, L. R., 1 C. P. 226. (x) Sack v. Ford, 13 C. B., N. S. 90. See also Roberts v. Shaw, 32 L. J., Q. B. 308. (y) See supra, p. 136, post, p. 343. (z) Hyde v. Willis, 3 Camp. 202. (a) Pearson v. Goschen, 33 L. J., C. P. 265. As to the meaning of the words "without prejudice to the charter party," see Shand v. Sanderson, 4 H. & (b) Jones v. Hough, 5 Ex. D. 115. (c) Dutton v. Powles, 2 B. & S. 174; S. C., in error, ib. 191. (d) Tindall v. Taylor, 4 E. & B. 219. FOR ORDERS. PORT OF CALL of call for orders. It is sometimes provided that the orders. shall be given within a specified time after the arrival of the ship at the port of call; but, in the absence of any such stipulation, the ship is bound to wait for orders a reasonable time only, and if no orders are given, it seems that the master may sail to any one of the ports within the provisions of the charter-party. There is no obligation, in the absence of an express provision to the effect in the charter-party, for the master to give notice of the arrival of the ship at the port of call, for it is the duty of the charterer to be on the outlook for the ship (d). Safe port. The charterer, in giving orders, is bound to name a port (e) to which the ship may go with safety (f). Where a ship is, by a charter-party, to proceed to "a safe port" to be named by the charterers, they are not entitled to name a port, by nature (d) Sieveking v. Maas, 6 E. & Bl. 670; Nicholson v. Renwick, Weekly Notes, 26th June, 1880, p. 119. There is sometimes inserted in the charter-party an express provision that the orders shall be given within twenty-four hours after notice of arrival at the port of call shall have have been given to the charterer's agent, and that the demurrage days shall run if the ship is detained after that time. (e) As to the meaning of "port," see Brown v. Tayleur, 4 A. & E. 241. (f) It seems that a port into which a ship cannot enter when fully laden is not a safe port. See The General Steam Navigation Company v. Slipper, 11 C. B., N. S. 493. But where the charterparty contains the words "as near thereto as she may safely get," it seems to be open to question whether the ship may not be ordered to a port over the bar of which she cannot enter without discharging a portion of her cargo, provided there are means of safely discharging such portion outside the bar. See The Alhambra, Admiralty Division, 27th July, 1880. As to the meaning of the words "safe port," see the judgment of Wightman, J., in Ogden v. Graham, 1 B. & S. 773; 31 L. J., Q. B. 26. And see supra, pp. 316, 317. For the meaning of the words" as near as she can safely get,' see supra, pp. 296, 317, and the judgment of Lord Campbell in Schilizzi v. Derry, 4 E. & Bl. 873; Shield v. Wilkins, 5 Ex. 304; Capper v. Wallace, 5 Q. B. D. 163; Hayton v. Irwin, 5 C. P. D. 130; Nelson v. Dahl, 12 Chan. D. 568; Metcalfe v. The Britannia Ironworks Company, 2 Q. B. D. 423. In Capper v. Wallace, 5 Q. B. D. 163, where, in accordance with orders given in pursuance of a charter-party, the ship was to proceed to a port in Holland some distance up a canal, or so near thereto as she could safely get, and, in order to enable the ship to get up the canal, it was necessary that at least one-third of the cargo should be discharged, and the charterers, who were bound by the terms of the charter-party to take cargo from alongside, refused to make any arrangement for taking delivery of any portion of the cargo at the mouth of the canal, it was held that the master was justified in considering the voyage at an end, and in treating the mouth of the canal as the place of discharge. But in this case the Court intimated an opinion that it could not be laid down as an inflexible rule that when a ship has got as near to the port as she can get, and the only impediment to proceeding further is overdraught, that the master is under all circumstances entitled to consider the voyage as at an end. "The overdraught may be such, "and the cargo so easily dealt with, as that the surplus may be removed "and the ship sufficiently lightened "without exposing her to extra risk, or "the owner to any prejudice, and with"out substantially breaking the con"tinuity of the voyage, and in such safe, but then closed by the local government, so that any vessel entering it without a permit, would be liable to confiscation (g). MENT. In cases of necessity, as, for instance, where the ship is TRANSHIPwrecked, or otherwise disabled in the course of the voyage and cannot be repaired, or cannot be repaired without too great a delay and expense, the master, acting as agent of his owner, may procure another competent vessel to carry on the goods and earn the freight. He is entitled, however, to a reasonable time within which to tranship (h). There is little authority in our law books as to whether it is the duty or only the right of the master to tranship, but although there is no express decision upon the subject there is no case in which such a duty has been declared. Transhipment has been treated merely as a power or privilege conferred upon the master for the benefit of the shipowner to secure the freight (i). But it is the duty of the Preservation master, as representing the shipowner, to take active measures where reasonably practicable for the preservation of the cargo from loss or deterioration in case of accidents. The master ought not to leave the cargo to perish, and in case of absolute necessity, where he has no means of communicating with the owners of the cargo, he may, to save the cargo, hypothecate the cargo, and where it is impossible to carry it on or preserve it he may even sell it (k). of the cargo. DUTY OF MASTER AT When the ship has arrived at the place of her destination, the master must take care that she be safely moored or anchored, and without delay deliver the cargo to the merchant or his consignees CHARGE. (g) Ogden v. Graham, 1 B. & S. 773. (h) The Soblomsten, L. R., 1 A. & E. 293. (i) See The Hamburgh, Br. & L. 253; De Cuadra v. Swann, 16 C. B., N. S. 772; Notara v. Henderson, L. R., 7 Q. B. 225. See also 3 Kent, Com. 210; Shipton v. Thornton, 9 A. & E. 316. The foreign jurists have differed on this question. The arguments on either side are shortly stated, and many of the foreign authorities on the subject are collected in the judgment in Shipton v. Thornton, ubi supra. In America it has been held, that it is the duty of the master to tranship where it is possible. 3 Kent, Com. 212. See, as to the duties of the master in M.P. cases of injury to the ship, and as to (k) See Tronson v. Dent, 8 Moo. P. Y EXCEPTIONS IN DISSOLUTION OF CONTRACT. By act of parties. Unforeseen event pre venting performance of contract. upon production of the bills of lading and payment of the freight (1). Under a charter-party providing for the delivery of the cargo at the usual place of discharge, the master is bound to take his ship to any usual place in the port to which the charterer may direct the ship to go (m). The charter-party usually contains the words, "the act of God, the Queen's enemies, and dangers of the seas excepted," or other words to a like effect. Similar words are usually inserted in bills of lading, and it will be convenient to consider the effect of these exceptions hereafter, when we treat of bills of lading (n). Contracts of affreightment may, like any other contracts, be dissolved by the consent of the parties; and at any time before breach it is not necessary that there should be any new consideration for the dissolution (0). It is, however, a rule of law that if the original contract is under seal, the contract of dissolution must be under seal (p). Contracts which are not by deed, but which by reason of the operation of the Statute of Frauds must be in writing, cannot be varied by a merely verbal agreement (q). It is an important general rule, of very frequent application, that where a party by his own contract creates a duty or charge, he is bound to perform it notwithstanding inevitable accident, since he might have provided against the contingency by the contract (r). (7) Abbott on Shipping, 3rd ed., p. 244; Fowler v. Knoop, 4 Q. B. D. 299. (m) Kirchner v. Venus, 12 M. P. C. 398; The Felix, 2 A. & E. 273; Parker v. Winlow, 7 E. & B. 942. (n) See post, p. 350. (0) King v. Gillett, 7 M. & W. 55; see also Viner's Abridg. Contract, G. 17. See Adamson v. Newcastle Steamship, &c. Association, 4 Q. B. D. 462, and see post, p. 332. The charterer's foreign agent has no implied authority to vary the cargo designated in a charter-party, nor to alter the place of loading; Sickens v. Irving, 7 C. B., N. S. 165; see also Broadhead v. Yule, 9 Sess. Ca. 13th series, p. 921. A ship's husband has no implied authority to cancel a charter-party; Thomas v. Lewis, 4 Ex. Div. 18. (P) 5 Rep. 26 a. (2) Goss v. Lord Nugent, 5 B. & A. 65. A subsequent verbal agreement which is not good under the statute cannot operate as a rescission of the original written contract; Noble v. Ward, L. R., 1 Ex. 117; 2 Ex. 135. (r) Paradine v. Jane, Aleyn, 27; Adams v. The Royal Mail Steam Packet Company, 5 C. B., N. S. 492. "If a man chooses to enter into a contract to do a particular act he is bound to answer for it, although the performance of the act may be prevented by the occurrence of unforeseen circumstances which it was beyond his power to control, and which have arisen from no act or default of his own, because he might and ought to have provided for the contingency by his contract;" per Brett, J., Jackson v. Union Marine Insurance Company, L. R., 8 C. P., at Thus, as we have seen, where time is expressly limited by the - terms of the contract for the loading or discharge of the ship, the merchant will be liable if he neglects to perform the contract on his part, even though he may be prevented by some unforeseen event (s). So where, owing to the prevalence of an infectious disease at the port of discharge, all public communication with the shore became unlawful and impracticable, it was held that the loss must fall on the freighter, and that he was liable in damages for not performing his contract (t). The shipowner's contract is not dissolved, nor is it any excuse for its non-performance, that the delivery of the goods to the consignee is prevented by their wrongful seizure by Custom House officers (u). Where the shipowners had covenanted to deliver the outward cargo, and "having done so" to receive on board a return cargo, and the freighters had covenanted that they would find and provide, "as they did warrant and assure to the shipowners," a full return cargo, it was held that the freighters were liable, on this covenant, for not having furnished a return cargo, although the delivery of the outward cargo was prevented by its seizure, without any default of the shipowners, at the outward port where it ought to have been delivered, by persons exercising the authority of Government there (x). The shipowner also, unless the charter-party expressly provides against such a contingency, is not protected even against inevitable accident. Thus, where shipowners covenanted to proceed to one of the Guano Islands, and there "to load a full and complete cargo of guano by the ship's boats and tackle, and by the labour of the crew," it was held to be no excuse for the 586. See Jones v. St. John's College, L. R., 6 Q. B. 115. This general rule is, however, subject to a qualification which is thus expressed by Hannen, J., in Baily v. De Crespigny, L. R., 4 Q. B., at p. 185:-"Where the event is of such a character that it cannot reasonably be supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happens. See Howell v. Coupland, 1 C. P. D. 258. (s) Ante, p. 317. (t) Where by the charter-party the charterer undertakes to procure a pass necessary to enable the vessel to load at a foreign port he cannot excuse his neglect to provide cargo simply on the ground that the government authorities refused to grant a pass; Kish v. Gibb, 1 H. & N. 810. (u) Gosling v. Higgins, 1 Camp. 451; Spence v. Chodwick, 10 Q. B. 517; and see also, as to the effect on the contract of the interference of the agents of the English government at a foreign port, Evans v. Hutton, 4 M. & Gr. 954. (x) Storer v. Gordon, 3 M. & S. 308; and see post, Chap. VI., Part II., DE MURRAGE. |