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 BY respect of, first, the preparation for the voyage; secondly, the THE MASTER AND commencement thereof; thirdly, the course of it; and, lastly, the completion. OWNERS. THE VOYAGE. First. In making preparation for the voyage, their first duty FREPARING 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. It is stipulated for in the usual form of charter-party. 1 Coggs v. Bernard, 2 Lord Raym. 909, 918; Dale v. Hall, 1 Wils. 281; per Lord Ellenborough, Lyon v. Mells, 5 East. 428, 437; Laveroni v. Drury, Seaworthiness. It is an express term of the ordinary bill of lading. It is implied at common law in every contract to carry for hire, and in every policy of marine insurance.' The law of France, although it requires the inspection of the ship by the proper authorities, before taking in cargo, 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.' Pothier, however, differing from the plain meaning of this 6 E. & B. 192; 1 Emerig. 372, 373, 374; See preceding note; 1 Arnould, Ins. 689. 2 Code de Com. art. 225. 3 Code de Com. art. 297; Ord. liv. 3, t. 3, art. 12-4 Pardess, 362. La preuve est admissible nonobstant et contre les certificats de visite au départ. 4 Valin, Ord. liv. 3, t. 3, art. 12. 5 Pothier, Charte-partie, no. 30, referring to the principles established in his Traité 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 être informé du vice de la chose louée, il est tenu de dommage et intérêts du conducteur, sans qu'il soit besoin de chercher, si effectivement il en a eu connoissance ou non."-Abbott. As 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 1007., and any master to a penalty not exceeding 501. Any ship not so provided as herein required, is not to receive a clearance or transire, and may be detained until so provided, 17 & 18 Vict. c. 104, § 292-294. These enactments do not interfere with the Passen- clearing out, that circumstance, and gers' Act. 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 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 he 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, should supersede the rights and obligations of the parties to a private contract. It is believed that in this country it would have no such operation. So much for principle. As for the policy, if it is to become general, of contriving by law and the executive to supersede individual prudence and care, it is much to be deprecated in any country as the source of gross negligence and serious damage. Crew and Pilot. 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.' Lyon v. Mells, 5 East. 428. Where the 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. Secus, 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. J. (Ex.) 52. See McManus v. The Lanc. & Yorksh. Ry. Co. (in error), 28 L. J. (Ex.) 353 ; any seaman Coxon v. Gt. West. Ry. 29 L. J. (Ex.)165. 21 Emerig. 373, 374; Roccus. not. 62. 3 17 & 18 Vict. c. 104, § 136, 161, 162. The 5 & 6 Wm. 4, c. 19, § 2 was "shall not carry to sea not engaged by written agreement, but non-compliance therewith did not amount to unseaworthiness, Redmond v. Smith, 7 M. & Gr. 457; that, however, is not decisive on this case. 4 Ante, c. vi. ; Law v. Hollingsworth, 7 T. R. 160; Dixon v. Sadler, 5 M. & W. 405; (in error) 8 M. & W. 895; Phillips v. Headlam, 2 B. & Ad. 380; see Gibson v. Small, 4 House of Lords Cases, 353; 1 Emerigon, 400; Molloy, bk. 2, c. 2, §7; Roccus, not. 59, 62: If the owner contracts to be ready with his vessel by a time Readiness to receive Cargo. certain to receive cargo, this readiness involves the seaworthiness 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.' 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. And as soon as any goods are put on board, the master must provide a sufficient number of persons to protect them; 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 Ord. Wisby, art. 60, 61 1 Pardess. 500; Ord. Antwerp, art. 9-2 Magens, 16; Wellwood's Sea Laws, 23, 26; Ord. Rotterdam, art. 139-2 Magens, 103. See Oliver v. Fielden, 4 Exch. 135. Fletcher v. Gillespie, 3 Bing. 635; Cooke v. Wilson, 1 C. B. (N. S.) 153; 26 L. J. (C. P.) 15; Blakie v. Stembridge, 28 L. J. (C. P.) 329. 3 Fragano v. Long, 4 B. & C. 219; Cooke v. Wilson, 1 C. B. (N. S.) 153; Molloy, bk. 2, c. 2, § 2; Roccus, not. 88; Wellwood, tit. 9, Dig. 4. 9. 3. Corban v. Downe, 5 Esp. 41. 5 Morse v. Slue, 1 Vent. 190, 238; Sir T. Raym. 220; Rich v. Kneeland, Hob. 17, 2 Cro. 330; Coggs v. Bernard, 2 Lord Raym. 909, 918; Dig. 4. 9. 1, 1. "Nisi hoc esset statutum, materia daretur cum furibus adversus eos, quos recipiant, coeundi, quum ne nunc quidem abstineant hujusmodi fraudibus." But the word fures here means thieves only, and not robbers, who come with a A A |