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CHAPTER IX.

PERFORMANCE UNDER AFFREIGHTMENT.

By Master and Owners . .349
Preparing for the Voyage . 349
Seaworthiness • ■ 350
Receipt and Stowage
of Goods . . 353
Commencing the Voyage . 356
Time . ... 356
Convoy . . 357

Pnrsning the Voyage . . 361
Deviation . .361
Repairs. . . . 363
Transhipment . 361

By Master and Owners—(continued).

Completing the Voyage . . 367
Delivery complete . 370
imperfect . 371
Responsibility for Goods
sold . . . . 871
By Freighter .... 375

Time 875

Cargo . . . .376
Quantity . . . 377
Kind . . .377

Landing and Relanding. . 380

Performance of the contract of affreightment involves the discharge of certain duties which are common to all contracts of that nature; and we propose here to consider what duties are required, first, of the owners and master of the ship; and, secondly, of the merchant who is the freighter.

The duties of the owners and master may be considered in Performance nr respect of, first, the preparation for the voyage; secondly, the Own Em?tm A>>1> commencement thereof; thirdly, the course of it; and, lastly, the completion.

First. In making preparation for the voyage, their first duty Freparino For is to provide a vessel tight and staunch and strong, furnished with all necessary tackle and apparel, and manned with a sufficient crew; in one word, seaworthy for the intended voyage. This duty rests upon a fundamental principle of all law.1 It is stipulated for in the usual form of charter-party.

1 C'oggs v. Bernard, 2 Lord Raym. 5 East. 428, 437; Laveroni v. Drury, 909, 918; Dale r. Hall, 1 Wils. 281; 8 Exch. 166; Thompson ». Gillespy, per Lord EUenhorough, Lyon v. Mells, 5 E. & B. 209; Fawcus v. Sarsfleld, It is an express term of the ordinary hill of lading. It is implied at common law in every contract to carry for hire, and in every policy of marine insurance.1

The law of France, although it requires the inspection of the ship by the proper authorities, before taking in cargo,2 provides, nevertheless, that upon proof of the vessel being at the time of sailing in an unfit condition to perform the voyage, the master loses his freight and is answerable in damages besides; and such proof of unseaworthiness is expressly declared admissible, notwithstanding certificates of survey to the contrary;' for as the survey which then takes place cannot detect secret faults, "the owner or master continues responsible for the same notwithstanding; and this the more justly, since he cannot be ignorant of the state of the ship; but even if he be ignorant, he must still answer, being necessarily bound to furnish a ship that is sound and capable of the voyage."4 Pothier,' however, differing from the plain meaning of this

6E.4B. 192; 1 Emerig. 372, 373, 374; Roccus. Not, 19, 57, 69; Ord. Rotterdam, art. 124—2 Magens, 101 ; Molloy, bk. 2, c. 2, § 10 ; Wellwood's Sea Laws, t. 7, p. 22.

A9 a precaution against the loss of life, every decked ship, except steamtugs and whalers, proceeding to sea from the United Kingdom, is required to be provided with boats, to the number and of the dimensions specified in table S of the statute, and any ship carrying more than ten passengers to have a life-boat in addition, (unless one of her boats is rendered buoyant in the manner of a life-boat), and also two life buoys, always in a condition and position ready for use; and for default in providing, maintaining, and keeping ready the same at all times, any owner, who is guilty, is liable to a penalty not exceeding 100?., and any master to a penalty not exceeding 50/. Any ship not so provided as herein required, is not to receive a clearance or transire, and may bo detained until so provided, 17 it 18 Viet. c. 104, § 292-294. These enactments do not interfere with the Passengers' Act.

1 See preceding note; 1 Aroould, Ins. 689.

* Code de Com. art. 225.

> Code de Com. art. 297 ; Ord. liv. S, t. 3, art. 12—4 Pardess. 362. La preuve est admissible nonobstant et contre les ccrtificats de visite au d6part.

4 Valin, Ord. liv. 8, t. 3, art. 12.

* Pothier, Charte-partie, no. 30, referring to the principles established in his Trait* de Louage ; part 2, c. 1, § 4, par. 2. But it rather appears to me that the rules there laid down by himself, warrant the conclusion that in this instance the owner and master ought to he responsible for the loss. "Lorsque le locateur devoit par sa profession 4tre inform6 du vice de la chose louee, il est tenu do dommagc ct interets du conducteur, sans qu'il soit besoin de chercher, si effectivement il en a eu connoissance ou non."—Abbott.

It is difficult to understand why, if the law, for purposes of public policy, e.g., the Passengers' Act of this country (18 & 19 Vict. c. 119, ante, c. vii.), requires the vessel to be surveyed before clearing out, that circumstance, and certificate of survey, which only shows article, and the commentary of Valin upon it, is of opinion, that if the ship has been visited and reported sufficient, the master or owner should not be answerable for damages occasioned by a defect, of which they were and must be ignorant, although lie thinks they should lose their freight.

It appeared in one case, that the owner of a lighter employed in conveying goods from a quay at Hull to sloops in the dock had, together with many other persons engaged in the same business, given public notice that they would not be answerable for loss or damage to any goods on board their vessels, unless it was occasioned by want of ordinary care and diligence in the master or crew; and in that case would pay 10 per cent, upon the loss, provided such payment did not exceed the value and freight of the vessel on board of which it had happened; and further, that any person desirous of having his goods carried free of risk from the act of God or otherwise, might have it by agreeing to pay an extra freight proportionable to the accepted responsibility. It was there held, nevertheless, that the owner was answerable to the full extent of the damage done to goods by reason of the leakiness and insufficiency of his lighter, although the merchant was acquainted with the notice before he sent the goods on board. In delivering the judgment of the Court on this occasion, Lord Ellenborough said: "In every contract for the carriage of goods between a person holding himself forth as the owner of a lighter or vessel ready to carry goods for hire, and the person putting goods on board, or employing his vessel or lighter for that purpose, it is a term of the contract on the part of the carrier or lighterman implied by law, that his vessel is tight and fit for the purpose or employment for which he offers and holds it forth to the public; it is the very foundation and immediate substratum of the contract that it is so; the law presumes a promise to that effect on the part of the carrier without any actual proof; and every reason of sound policy

that the law has been complied with, to become general, of contriving by law

should supersede the rights and obliga- and the executive to supersede indi

tions of the parties to a private contract, vidual prudence and care, it is much

It i-5 believed that in this country it to be deprecated in any country as the

would have no such operation. So much source of gross negligenco and serious

for principle. As for the policy, if it is damage.

and public convenience requires it should be so." And the Court considered the insufficiency of the lighter " as a personal neglect of the owner, or more properly as a non-performance on his part of what he had undertaken to do, viz. to provide a fit vessel for the purpose ;" and thought it clear that the only object of the notice "was to limit the responsibility of the owners, in those cases only where the law would otherwise have made them answerable for the neglect of others, and for accidents, which might not be within the scope of ordinary care and caution to provide against.'"

It is not only in the hull of the ship and her furniture that she must be sufficient for the voyage, but as we have said, in the adequacy also of the crew, both in number and competency to navigate her.' It remains to be decided whether a vessel is unseaworthy that proceeds to sea under officers who are not possessed of the certificates of competency required by law; the statute uses the very strongest language, by enacting that a vessel so officered " shall not go to sea;" but if this is merely to serve the purposes of public policy, and the language receives all the effect it was intended to have by the clearances being refused, and the offending officers and owners being fined,' private contracts of insurance and affreightment continue as before unaffected by this statutory provision. But for sailing down rivers, out of harbours, or through roads, &c, where either by usage, or the laws of the country, a pilot is required, a pilot must be taken on board.'1

1 Lyon v. Hells, 5 East. 42S. Where tlio master stipulated in the bill of lading "not to be accountable for leakage or breakage," it was held, on the authority of this case, that he was accountable nevertheless for loss by these means through negligence, Phillips v. Clark, 26 L J. (C. P.) 168. Sccus, if the stipulation be, "not to be accountable for any damage or loss by any means whatever during the transit," although appearing in the time bill only, which was given to the plaintiff, and not contradicted by the particular contract, Phillips v. Edwards, 28 L. .1. (Ex.) 52. See McManus r. The Lane. & Yorksh. By. Co. (in error), 28 L. J. (Ex.) 353;

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If the pwner contracts to be ready with his vessel by a time Readiness to recertain to receive cargo, this readiness involves the seaworthiness **** Car&0' of the hull, the state of the hold being proper, and a sufficiency of officers and crew on board to receive the goods and guard them when received, and this within the specified time.1

The manner of taking goods on board, and the commence- Receipt of Cargo, ment of the master's duty in this respect, depend on the custom of the particular place, unless that be excluded by express stipulations in the charter-party.' More or less is to be done by wharfingers or lightermen according to the usage. If the master receive goods at the quay or beach, or send his boat for them, his responsibility commences with the receipt.' In the port of London, with respect to goods intended to be sent coastwise, it has been held that the responsibility of the wharfinger ceases by delivery of them to the mate of the vessel upon the wharf.4 And as soon as any goods are put on board, the master must provide a sufficient number of persons to protect them ;s for, even if the crew be overpowered by a superior force, and the goods stolen, whilst the ship is in a port or river within the body of a county, the master and owners will be answerable for the loss, although they have been guilty

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only, and not robbers, who come with a
superior and irresistible force ; they are
called latrones. Thus by the Digest, 17.
2. 52, 3, a partner, who has the care of
the joint property, is not answerable,
'' si id, latrocinio aut iucendio perierit,"
but ho is answerable, "si a furibus
subreptum sit." Upon which Gotho-
fred observes, "adversus latronesparum
prodest custodia ;—adversus fures pro-
desse potest, si quis advigilet. Latro-
cinium fatale damnum, seu casus
fortuitus est; at non furtum." And
the words of the Digest, title—NauUz
cauponcs staiularii, &c. 4. 9. 8. are,
"nisi si quid damno fatali contingat;
inde Labeo scribit, si quid naufragio,
aut per vim piratarum perierit, non esso
iniquum exceptionem ei dari; idem erit
dicendum si in stabulo aut in caupona
vis major contigerit." Our law, though
at present stricter in the case of car-
riers than the civil law, is said to havo
been the same formerly, and not to
A A

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