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agent, he takes care on every occasion to give special instructions.'

When not under seal, the instrument is called a Memorandum FORM. of Charter-party, and the following is the common form in blank:

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That the said Ship being tight, staunch, and strong, and every way fitted
for the Voyage, shall, with all convenient speed, sail and proceed to
or so near thereunto as she may safely

get, and there load from the Factors of the said

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

or so near thereunto as she may safely get, and deliver the same on being paid Freight

(the Act of God, the Queen's Enemies, Fire, and all and every other Dangers and Accidents of the Seas, Rivers, and Navigation, of whatever Nature and Kind soever, during the said Voyage, always excepted.) The Freight to be paid on unloading, and right delivery of the Cargo.

running Days are to be allowed the said

Merchants (if the Ship is not sooner dispatched) for loading the said

Ship, at

And

at

Agreement,

Days on Demurrage, over and above the said lie-days,2
per Day. Penalty for Non-Performance of this

A charter-party, or any agreement or contract for the charter STAMP. of a ship, or any memorandum, letter, or other writing, between the master or owner of any ship and any other person, for or relating to the freight or conveyance of any money, goods,

v.

1 Per Pollock, C. B., Smith M'Guire, 27 L. J. (Ex.) 465; 3 H. & N. 554, 560.

I have presumed to substitute a proper English word for the "lay-days" or "laying days," usually found here.

When Stamp may be affixed.

When not.

Prima facie evidence of Stamp.

USUAL STIPULA

TIONS IN CHAR-
TER-PARTY.

Conditions precedent.

or effects on board such ship, is liable to a stamp duty of five shillings.'

It may be stamped within fourteen days after the date of it, or after it was first executed or signed by the party who first did so, on payment of the proper duty merely. After the expiration of such fourteen days, but within one calendar month from the date of it, or from the time it was so first executed or signed, it may be stamped on payment of the duty and a penalty of 101.

Beyond the latest of these two periods the Commissioners have no power to impress the instrument with a stamp.3

Where a charter-party had been left at the office of the subdistributor of stamps at Cardiff, with the proper duty and postage, within the fourteen days, for the purpose of having it stamped, and no trace of it could be afterwards discovered, but proof was given of the routine course of duty in such a case at the offices in London and Cardiff, the Court presumed thereupon that it had been duly stamped and admitted secondary evidence of its contents.'

Questions upon the construction of this instrument have frequently been raised, on the assumption that of two things reciprocally stipulated in it to be done, performance of the one is dependent on performance of the other, in the nature of a condition precedent. But whether that is so, stands not on any formal arrangement of the words, but on the reason and sense of the thing, as these are to be collected from the whole of the contract taken together. “The rule was well laid down by Lord Mansfield in Boone v. Eyre,' that where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other; but

1 5 & 6 Vict. c. 79; as to Ireland, 5 & 6 Vict. c. 82.

25 & 6 Vict. c. 79, § 21; 5 & 6 Vict.

c. 82, § 34.

banc will regard only the case as it appears in the declaration, however it may differ from the original charterparty when the foreign terms are pro

3 Closmadeuc v. Carrel, 18 C. B. 36; perly interpreted, Gether v. Capper,

2 Taylor Ev. 157.

If the plaintiff declares on a certain translation of a foreign charter-party, and the case go to trial, the Court in

24 L. J. (C. P.) 69; (in error) 25 L. J. (C. P.) 260.

5 Boone v. Eyre, 1 H. Bl. 273 note, cited 6 T. R. 573.

where the covenants go only to a part, there a remedy lies on the covenant to recover damages for the breach of it; but it is not a condition precedent."'

This general rule in both branches receiving illustration from the particular decisions on the instrument, we now proceed to refer to some of them in the order of the instrument itself.

Ship.

The ship specified in the charter-party, by name, measure- Description of ment, and master, is so engaged to the charterer, that he may refuse to load another instead; the withdrawal of the first is a breach of contract for which an action will lie; but a bill in equity for specific performance of the charter-party must fail.* The single word descriptive of her national character may, during hostilities, or under a prohibitory policy, amount to a warranty. If she loses her letter at Lloyd's before the contract is performed, it is enough that she had it as described in the charter-party, at the time of the making thereof. The descrip

tion of her capacity as "of the measurement of so many tons or Capacity of Ship. thereabouts," is merely a representation entitling the charterer to burthen reasonably near the amount which he contracted for, and whether that which is actually supplied be unreasonably in excess or defect of the contract is a matter of fact for the verdict of a jury. Where, therefore, to an action for not loading according to charter-party, there was a plea of warranty that the vessel was of the measurement of 180 to 200 tons, the breach being that really she was of 257 tons measurement, the Court of Exchequer Chamber held it to be no warranty, stating at the same time, that by proper pleading, the defendant might have taken the opinion of the jury as to the reasonableness of the difference; and on this question the Court were of opinion that it was not unreasonably in excess of the contract, and he was bound to load her."

1 Per Lord Ellenborough, Ritchie v. Atkinson, 10 East, 295; per id. Davidson . Gwynne, 12 East, 381, 389; per Pollock, C. B., Tarrabochia v. Hickie, 26 L. J. (Ex.) 26, 28; 1 H. & N. 183, S. C.

2 De Mattos v. Gibson, 28 L. J. (Ch.) 498, 502.

3 Lothian v. Henderson, (H. of Lords) 3 B. & P. 499. But a freighter may be

estopped from setting up this defence,
Reusse v. Meyers, 3 Camp. 475, if he
contracted with knowledge of the fact.

4 Hurst v. Usborne, 18 C. B. 144;
see Dimech v. Corlett, 12 Moore, P. C.
199.

5 Windle v. Barker, 25 L. J. (Q. B.) 349; 6 E. & B. 675, S. C.; Hunter v. Fry, 2 B. & Ald. 421. But if the freighter stipulating to pay so much

Y

Present engagements of Ship.

Seaworthiness.

Time.

The representation made of the ship's present locality or engagement may be such, that performance under the new contract is directly stipulated with regard thereto, and dependent upon it; in that case it is a warranty, and breach of it will be a defence to an action on the charter-party. Thus, in a memorandum of charter-party, it was stipulated that the ship now at sea, having sailed three weeks ago, or thereabouts," should proceed for cargo to Marseilles, after having discharged at Genoa; but in fact, she had sailed at a much later period, and this was held a good defence for the freighter to an action for non-performance.'

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Those words relating to seaworthiness, in the common form of charter-party, "being tight, staunch, and strong, and every way fitted for the voyage," amount to an agreement which will entitle the freighter to compensation for injury under breach thereof, but do not make a condition precedent,' unless that effect be imparted to them by other stipulations in the charterparty. Thus, where it was also agreed that one-fourth of the freight should be paid in advance on the ship having sailed, less 5 per cent. thereon for insurance, &c., in that case it was held that the stipulation for insurance, importing also a warranty of seaworthiness at starting, gave to those other words the force of a condition precedent with regard to the title to the advance freight.'

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On general principles, the law implies, in all contracts by charter-party, where there is no express agreement as to time, a stipulation that there shall be no unreasonable or unusual delay in commencing the voyage, or if it has been commenced, no deviation in the performance of it; but, although breach of this gives the freighter a right to damages, it is no defence to an action for non-performance of his own part of the contract,

per ton of goods put on board, did not
also stipulate to lade a full cargo, the
measure of the freight would be the
quantity of goods on board; James v.
East India Co., coram Kenyon, C. J.,
Guildhall, post, M. T. 1789.

1 Ollive v. Booker, 1 Exch. 416. See
Dimech v. Corlett, 12 Moore, P. C.
199.

2 Tarrabochia v. Hickie, H. & N.

183; 26 L. J. (Ex.) 26, S. C.

3 Thompson v. Gillespey, 5 E. & B. 209; 24 L. J. (Q. B.) 340, S. C.

Per Tindal, C. J., M'Andrew v. Adams, 1 Bing. N. C. 29, 38; Mount v. Larkins, 8 Bing. 108.

Davis v. Garrett, 6 Bing. 716; Freeman v. Taylor, 8 Bing. 124.

6 Dimech v. Corlett, 12 Moore, P. C. 199; Tarrabochia v. Hickie, 1 H. & N.

unless the plea also show that the purposes of the charterparty were altogether frustrated by the delay. By a charterparty of the 20th of October, it was agreed that the defendant's ship should proceed from Portsmouth to St. Michael's, and there receive a cargo of fruit for London, the thirty-five running days allowed for loading and unloading to commence on the 1st of December following, and if the vessel did not arrive at St. Michael's by the 31st of January, the freighter to be at liberty to rescind the charter-party; and in an action by the freighter for delay, it was held that the defendant was bound to have proceeded on the voyage at once, and was not at liberty to make an intermediate voyage for his own purposes, although notwithstanding his doing so, he arrived at St. Michael's before the 31st of January. On the contrary, where the freighter under a charter-party in the common form was sued for refusing to load a cargo, and he pleaded the unreasonable delay of the plaintiff, to wit, for thirty-eight days, in arriving at the port of loading, in consequence of voyages made in the meantime for his own profit, the plea was held bad for not showing, in the absence of any warranty, an entire frustration of the purposes of the charter-party by the plaintiff's delay. The obligatory operation of this implied stipulation is reciprocal. If a shipowner agrees that the vessel shall proceed with all convenient speed from one intermediate port to another which is to be named to him at the former, the freighter impliedly binds himself to name the port within a reasonable time, and for unreasonable delay therein, he is liable to an action.*

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But where time is specified, and both parties contract with regard to it, whether it be the time at which the vessel is to be ready to receive cargo, or the day of sailing, or of arrival outwards, or the day of any other event in the voyage, the courts hold that it is in the nature of a condition precedent to

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