and sometimes does, execute a charter-party and covenant in his own name for performance by his principal, so as to bind himself to answer for his principal's default, by force of the deed. And in an action to recover freight or demurrage, claimed in pursuance of a charter-party by deed, it has been held that the declaration must be specially framed on the deed itself (v). If such a charter-party be made between the master and the merchant, in pursuance of which goods are delivered to the merchant and his partners, the freight cannot be recovered in an action upon the case brought by the owners against the merchant (w). So, if the owner execute a deed to the merchant, containing the usual covenant for a right delivery of the cargo, he cannot be sued by the merchant for not delivering it, in an action upon the case, grounded on the bill of lading signed by the master (x). But where a charter-party under seal was made by the master in that character, with merchants who did not know that he was also a part-owner in the ship, as, in fact, he was; it was held, that they might sue him and the other owners in an action upon the case, for a breach of such general duties as were not inconsistent with the stipulations of the charter-party, such as the not providing necessaries for the voyage, and employing a negligent and unskilful master (y). And whether the instrument be under seal or not, an action at law grounded upon it must be brought in the name of the party to it, and not in the name of another, to whom he may have assigned his interest. And, therefore, the purchaser of a ship previously chartered cannot sue for the freight earned under the charterparty in his own name (z), although payment to him will be a good discharge to an action brought in the name of the seller, at least if the purchase be made before the ship sails on the voyage (a). In like manner, where goods were shipped, in pursuance of a charter-party made by the master with one Partridge, and whereby he engaged to receive a cargo of fruit from the agents or assigns of Partridge, and deliver the same to him or his assigns; and upon the shipment he signed a bill of lading, stating the goods to have been shipped by one Strange, by order of Rovedino and Moores, to be delivered to the order of Moores, and freight to be paid according to the tenor of the contract of affreightment-it was held that Moores could not maintain an action against the master for negligence in the stowing of the fruit (b). Another technical rule of the law of England, applicable also to the contract by charter-party under seal, should be noticed in this (v) Atty v. Parish, 1 B. & P. New Rep. 104. But query of this decision as to an action brought by and against the parties to the deed, whether the declaration may not be framed in debt generally, and the deed given in evidence. See the opinion of Bayley, J., in the case of Tilson v. The Waricick Gas Light Company, 4 B. & C. 968. (w) Schack and another v. Anthony, 1 M. & S. 573. (x) Hunter v. Prinsep, 10 East, 378. (y) Leslie v. Wilson and others, 3 B. & B. 171, and 6 B. Mo. 415. (2) Splidt v. Bowles, 10 East, 279. The charter-party appears to have been under seal. Morrison v. Parsons, 2 Taunt. 407. The charter-party was not under seal. (a) Morrison v. Parsons, ubi supra. (b) Moores v. Hopper, 2 B. & P. New Rep. 411. It does not appear by the report, whether the charter-party was by deed or simple contract; the declaration seems not to have noticed the charter-party. place. If a charter-party is expressed to be made between certain parties, as between A. and B., owners of a ship whereof C. is master, of the one part, and D. and E. of the other part, and purports to contain covenants with C., nevertheless C. cannot bring an action in his name upon the covenants expressed to be made with him, nor give a release of them, even although he seals and delivers the instrument (x). But if the charter-party is not expressed to be made between parties, but runs thus: "This charter-party indented witnesseth that C., master of the ship W., with consent of A. and B., the owners thereof, lets the ship to freight to E. and F.," and the instrument contains covenants by E. and F. to and with A. and B.in this case A. and B. may bring an action upon the covenants expressed to be made with them, although, unless they seal the deed, they cannot be sued upon it (y). This latter, therefore, is the most proper form. The performance of a contract under seal cannot, according to the law of England, be released by parol, or by a written instrument not under seal. The terms of such a charter-party may be explained by usage, but cannot be altered, nor can any terms be introduced so as to vary the nature of the original contract (z). And if by agreement of the parties a new voyage be substituted for the voyage mentioned in the charter-party, and such voyage be performed, the owner cannot sue the merchant on the original instrument for the freight or demurrage (a); his remedy, if any, must be founded on the subsequent agreement. But if such a contract be to take effect from a particular time, an agreement relating to an earlier period of time will not be a variation or dispensation, and may be good and binding. Thus where, by a charter-party under seal, a ship was let at a certain rate per month, to commence and be computed from the day of her departure from Gravesend, and was to take in her cargo at a port in the Channel, and sail therewith on the intended voyage, a subsequent verbal agreement for loading the ship in the Thames, and commencing the payment from the day of her clearing out at the Custom-house, was held to be binding, and the merchant was compelled to pay for the interval between clearing out and sailing from Gravesend (b). And where, in an action of assumpsit, it appeared that, by agreement of charter, lay days were to be reckoned from the 16th of December for loading the ship at Cardiff, and proof was given that Pembroke was afterwards agreed to be substituted for Cardiff as the port of loading-it was held, that the lay days must be reckoned (x) Scudamore v. Vandenstene, 2 Inst. 673. See also Lord Ellenborough's judgment in Storer v. Gordon and others, 3 M. & S. 322; Salter v. Kidgly, Carth. p. 76; and Barclay v. Hardy, K. B. Easter Term, 7 Geo. 4. And see the judgment in Bushell v. Beavan, 1 B. N. C. 120. (y) Cooker v. Child, 2 Lev. 74; and see Gilby v. Copley, 3 Lev. 138. Sunderland Marine Insurance Company v, Kearney, 16 Q. B. 92. If a charter-party be concluded in the name of another styling himself the owner, though in truth only an agent, the real owner cannot sue on it-evidence not being admissible to contradict the statement in the contract. Humble v. Hunter, 12 Q. B. 310. (z) Gibbon v. Young, 2 B. Moore, 224. (a) Thompson v. Brown, 7 Taunt. 656. (b) White v. Parkin, 12 East, 578. from the 16th of December at Pembroke, as if the vessel had been at Cardiff (c). The instrument of contract by charter-party is now more commonly an agreement not under seal, and called a memorandum of charter. It is sometimes executed by persons describing themselves as agents of a named principal, in which case the liability of such persons is a question of intention and construction, to be determined upon the wording of the whole contract in the light thrown upon it by the surrounding circumstances (d). The fact that the alleged principal is beyond the reach of the laws of the country, though not as matter of law conclusive of the professed agent's liability, furnishes an argument more or less prevailing according to the circumstances of the case (e). The proper style of signature for an agent intending to provide against his own liability is to contract in the name of his principal and sign "per procuration of -—;” he will not be protected by a description of himself in the body of the instrument as an agent for his principal, if he sign in his own name (ƒ). Persons who had signed "by authority of and as agents of M.A.H.S. of Memel," (g) and "on behalf of N." (h), were held personally liable. The form "A. B., agent of C. D.," has been considered to be mere description, and not to exempt A. B. from liability as the contracting party (i). The defendants in a recent case had chartered a ship as agents to a principal named in the charter-party, and signed as his agents-but the words "merchants and charterers," were left unaltered in the printed form of the charter-party, and it was contended that the plural words must be applicable to them and not to the principal; but the court held that the manifest intention was that the defendants should not be personally liable (k). Clauses expressly protecting persons signing charter-parties "for another party" from "all liability after shipment of the cargo, the owners and master agreeing to rest solely on their lien on the cargo for freight and demurrage" (l), and clauses providing that the liability persons "in every respect, and as to all matters and things as well before as after the shipping of the cargo," should "cease as soon as they had shipped the cargo" (m), have been held effectual for their object, and to exempt the freighters from liability for demurrage and for not shipping in regular turn (n). An agent not describing himself as such, but contracting in his own name as a principal, cannot get rid of his liability by showing that he (c) Jackson v. Galloway, 5 Bing. N. C. 71; 6 Scott, 786. (d) Lennard v. Robinson, 4 E. & B. 24; 24 L. J. Q. B. 275. Lewis v. Nicholson, 18 Q. B. 503; 21 L. J. Q. B. 311. Downman v. Williams, 7 Q. B. 103. Downman v. Jones, 4 Q. B. 235. (e) 2 Kent's Commentaries, part 5, lect. 41, note (b). Wilson v. De Zulueta, 14 Q. B. 405; 19 L. J. Q. B. 49. Lennard v. Fleming, 5 E. & B. 125; 24 L. J. Q. B. 275. Lewis v. Nicholson, 21 L. J. Q. B. 405. Tanner v. Christian, 4 E. & B. 591; 24 L. J. Q. B. 91. (f) Parker v. Winlow, 7 E. & B. 942; 27 L. J. Q. B. 49; but see Green v. Kopké, 18 C. B. 549; Mahony v. Kekule, 14 C. B. 390; Deslandes v. Gregory, 30 L. J. Q. B. 36. (g) Lennard v. Robinson, supra. Lewis v. Nicholson, supra. (h) Tanner v. Christian, 4 E. & B. 591; 24 L. J. Q. B. 91. (i) Parker v. Winlow, supra. was an agent only (e). If a person who is really not a principal describes himself as an agent for another, whose name he puts as principal to the contract as well as his own, he cannot be sued personally upon it (f), though he may be made liable on an implied promise that he had authority to sign as agent (g). A principal may be held liable on a contract entered into without his authority by an agent, if he has held him forth, or allowed him to hold himself forth publicly in previous transactions as agent, in a way to have induced a reasonable inference in the mind of the person seeking to enforce the contract, that he had authority to bind his principal (h). If a charter-party be concluded in the name of another styling himself as owner, though in truth only an agent, the real owner cannot sue upon it, evidence not being admissible to contradict the statement in the contract (i). As respects the performance of the stipulations of a charter-party, we may here observe that it is not a mere contract for the conveyance of goods from one place to another, but for the service of a specific ship, often after careful consideration of the purposes for which it is adapted, and of the cargo and voyage for which it is required. The shipowner's contract, relating as it does to the ship's condition and equipment at the commencement and during the course of the voyage, the appointment of a competent master, the engagement of an adequate crew, the supply of the necessary stores, and the course and prosecution of the voyage, is such as to render the interference of a court of equity to enforce a specific performance of it, with any practically beneficial effect, impossible. The charterer, is therefore, from the necessity of the case, left to his action at law to recover damages for the breach of the shipowner's contract in any of these particulars. But a court of equity will interfere to restrain by injunction the employment of a ship by its owner in a manner inconsistent with the contract (k). 2. Of the usual Contents thereof. Stipulations as to Voyage, Freight, Burthen of Ship, &c. By this contract a ship is let for a voyage to one or more places; the freight is expressed to be a sum of money for the entire ship, or (e) Higgins v. Senior, 8 M. & W. 834. f) Jenkinson v. Hutchinson, 13 Q. B. 744. Jones v. Downman, 4 Q. B. 235, in notis. Humble v. Hunter, 12 Q. B. 310. Schmalz v. Avery, 20 L. J. Q. B. 229. Carr v. Jackson, 7 Exch. 382. (g) Collen v. Wright, 7 E. & B. 301. (h) Smith v. McGuire, 3 H. & N. 560. An equitable plea in an action by the owners of a ship against the charterer that the agents contracted as agents for foreign principals, and that it was understood and believed by an entire part of the ship, or for each ton or other portion of its capacity; and this sum is again either a gross sum for the whole voyage or voyages, or a particular sum for every month or week of the ship's employment. Sometimes also the freight is expressed to be a certain sum for every ton, cask, or bale of goods put on board, in which case the merchant usually covenants not to put on board less than a specified number of tons, casks, or bales; and where the payment is to be by the ton of goods, it is usual and proper to add, "and so in proportion for a less quantity than a ton," as it was formerly decided, in a case where these words were omitted, that the owner could recover nothing for a hogshead (). These variations in the mode of paying the freight have given rise to some questions and decisions on that article, which will be more properly noticed in the chapter on payment of freight. The merchant who has so hired a ship may lade it either with his own goods, or, if he has not sufficient, may take in goods of other persons, or he may wholly underlet the ship to another. By the French ordinance, underletting at an advanced price is prohibited (m) —a wise regulation, though not adopted by our law, and perhaps not rendered necessary by the practice of our merchants (n). If it be necessary, a clause may easily be introduced into all charter-parties to prevent the practice. The charter-party usually expresses the burthen of the ship (0), and by the French ordinance it is required to do so (p). A mistake in the amount of the burthen may in some cases be prejudicial to one party or the other. The French ordinance provides that the master who declares his ship to be of a burthen exceeding the truth shall answer the merchant in damages, but that an error shall not be deemed to exist unless it exceeds a fortieth part (q). According to Molloy, if a ship be freighted by the ton, and found of less burthen than expressed, the payment shall be only for the real burthen (r). And if a ship be freighted for two hundred tons, or thereabouts, the addition of thereabouts, says the same author, is commonly reduced to be five tons, more or less. Where a ship was described in a charter-party as of the burthen of 261 tons or thereabouts, and the owner covenanted to receive at a foreign port a full and complete cargo, and the merchant covenanted to load such full and complete cargo, the burthen of the ship thus expressed was held not to conclude the parties; and the merchant was held answerable upon this covenant for not having furnished a full cargo, although in fact he furnished as many as 261 tons, and it appeared that the ship was capable of carrying 400 tons of goods of the description mentioned in (1) Rea v. Burnis, 2 Lev. 124. (m) Liv. 3, tit. 3, fret. art. 27. (n) But see Michenson v. Begbie, 6 Bing. 190. (0) See on this head Straccha de Navibus, pars 3 num. 4, ad. 13 inclusive. (p) Liv. 3, tit. 1; Charte-partie, art. 3. |