hand the best way of meeting it, it would be desirable that each Chap. 8. should from the first be informed of the duty which, in such a case, would be assigned to him. 15. The male passengers should be required to fall into and assist Male passenthe several parties as the master might direct. This would not only gers. be a material aid, but would help to keep their minds engaged, and to promote the discipline on which the safety of all must to a great extent depend. 16. The females, with children, and sick, should remain under the Females and children. immediate charge of the surgeon, who should endeavour to keep them from being a hindrance to the working parties, and prepare them for immediately leaving the ship, should that step ultimately become necessary. They should secure what warm clothing they could. or lower the 17. No one should be permitted to enter the boats, except those in No one to enter charge of them; nor should any boat be lowered on any pretence boats without whatever, unless by the express orders of the captain. On a strict orders. observance of this rule the safety of the people in the last extremity will depend. 18. If the boats should be insufficient to hold all the people, the Raft. master will, of course, take whatever measures may be in his power to construct a raft. A raft may be made of spare spars lashed together in a triangular form, and to render it more buoyant the ends should be secured to empty water casks, whose heads should be guarded by hammocks or beds. As a precautionary preparation against such an emergency, some of the largest water casks as soon as emptied should be grometted round at each end with 3-inch rope, becketted, and tightly bunged, and stowed away in the long-boat and daily wetted, and thus kept ready for use at a moment's notice. 19. Any attempt to get at the spirits or wine on board in Broaching moments of danger should be resisted by all hands and at all spirits in hazards. moments of danger to be forcibly resisted. PART THE FOURTH. OF THE CARRIAGE OF GOODS IN MERCHANT SHIPS. CHAPTER I. OF THE CONTRACT OF AFFREIGHTMENT BY CHARTER-PARTY; AND HEREIN, SECT. 1. Of the Instrument of Contract by Charter-party, p. 175. 2. Of the usual Contents thereof. Stipulations as to Voyage, Freight, Burthen, of Ship, &c. p. 179. 3. Of Stipulation as to Time for providing and receiving Cargo, p. 182. 4. Construction of Charter-parties, p. 183. 5. Of Covenants in Charter-parties. Conditions precedent, p. 200. 6. Evidence of Usage of Trade, when admitted in their Interpretation, p. 210. 7. Bills of Lading for Goods shipped under Charter-party, p. 214. [The contract by charter-party, of which it is here intended to treat, is, as I have before observed, a contract by which an entire ship, or some principal part thereof, is let to a merchant for the conveyance of goods on a determined voyage to one or more places. A ship may indeed be let for other purposes, as to be employed in warfare, or in the fishing, coasting, or other trade, under the entire management of the hirer; or by way of mortgage, reserving at least a temporary right of management to the letter; or one partowner may let his share to another. But contracts of this nature do not form the subject of the present inquiry.] Charter-parties are usually in writing, and when in writing generally require a stamp (a). (a) By 33 & 34 Vict. c. 97, sched.-Charterparty, or any agreement or contract for the charter of any ship or vessel, or any memorandum, letter, or other writing, between the captain, master, or owner of any ship or vessel, and any other person, for or relating to the freight or conveyance of any money, goods, or effects on board of such ship or vessel-6d. By section 66, "the duty upon an instrument chargeable with duty as a charterparty may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the instrument is last executed, or by whose execution it is completed as a binding contract." Section 67. "Where any document is chargeable with duty as a charter-party, and not being duly stamped, is first executed out of the U. K., any party thereto may, within ten days after it has been first received in the U. K., and before it has been executed by any person in the U. K., affix thereto an adhesive stamp denoting the duty chargeable thereon, and at the same time cancel such adhesive stamp, and the instrument with an adhesive stamp thereon so affixed and cancelled shall be deemed duly stamped." Section 68. "An executed instrument, chargeable with duty as a charter-party, and not being duly stamped, may be [The term charter-party is generally understood to be a corruption Chap. 1. of the Latin words charta-partita (b); the two parts of this and other instruments being usually written in former times on one piece of parchment, which was afterwards divided by a straight line cut through some word or figure, so that one part should fit and tally with the other, as evidence of their original agreement and correspondence, and to prevent the fraudulent substitution of a fictitious instrument for the real deed of the parties. With the same design indentation was afterwards introduced, and deeds of more than one part thereby acquired among English lawyers the name of indenture, This practice of division, however, has long been disused, and that of indentation has become a mere form. I propose, in the present chapter, to consider the modes in which this contract may be made, and to mention the usual stipulations contained in a charter-party, and some particular covenants, that have furnished occasion for the decision of a court of justice; reserving the consideration of the general duties that arise, as well out of the contract for conveyance in a general ship as of this species of contract, for distinct chapters hereafter. 1. Of the Instrument of Contract by Charter-party. This instrument, when the ship is let at the place of the owners' residence, is generally executed by them, or some of them (and frequently by the master also), and by the merchant or his agent (c).] stamped with an impressed stamp upon the (1.) Within seven days after the first month after the first execution Section 24 (1.) An instrument, the duty upon which is required, or permitted by law to be denoted by an adhesive stamp, is not to be deemed duly stamped with an adhesive stamp unless the person required by law to cancel such adhesive stamp cancels the same by writing on or across the stamp his name or initials, or the name or initials of his firm, together with the true date of his so writing, so that the stamp may be effectually cancelled, and rendered incapable of being used for any other instrument, or unless it is otherwise proved that the stamp appearing on the instrument was affixed thereto at the proper time. (2.) Every person who, being required by law to cancel an adhesive stamp, wilfully neglects or refuses duly and effectually to do so in manner aforesaid shall forfeit the sum of 107. Where a charter-party which had been left within the proper time at a district stamp-office, and with the proper duty and postage, that it might be sent up to London to be stamped at the proper office, was mislaid, and it could not be again found, secondary evidence of its contents was admitted, upon proof that in the usual course of business it would have been sent up from the district office to the office in London. Closmadeuc v. Carrel, 18 C. B. 36; 25 L. J. C. P. 216; see Stowe v. Querner, L. R. 5 Ex. 155. (b) [Hargrave's note on the 1st Inst. 229 Pothier, Traité de Charte-partie, num. 1, gives the same etymology of this word from Boerius, but with a different expla nation.] (c) When charter-parties are not under seal, the ordinary rules as to contracts entered into by agents apply to them. See Higgins v. Senior, 8 M. & W. 834; Part IV. [I have before observed, that the execution of a charter-party] under seal [by the master, although said to be done on behalf of the owners, does not furnish a direct action, grounded upon the instrument itself, against them. This depends upon a technical rule of the law of England (a), applicable as well to this as to other cases, and not affected by the mercantile practice of executing deeds for and in the name of absent persons; the rule of the law of England being, that the force and effect which that law gives to a deed under seal cannot exist unless the deed be executed by the party himself, or by another for him, in his presence, and with his direction; or in his absence, by an agent authorized to do so by another deed; and in every such case the deed must be made and executed in the name of the principal (6). The agent, indeed, either of the owner or merchant may, 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 before the Judicature Acts an action to recover freight or demurrage, &c., claimed in pursuance of a charter-party by deed, was brought on the deed itself (c). Before such Acts, if the owner executed a deed to the merchant, containing the usual covenant for a right delivery of the cargo, he could not 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 (d). But, before such Acts, 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 negli gent and unskilful master (e). Before the Judicature Acts, the purchaser of a ship previously chartered could not sue for the freight earned under the charter-party in his own name (ƒ). The terms of a charter-party under seal may be explained by usage, but cannot be altered, nor can any terms he introduced so as to vary Humble v. Hunter, 12 Q. B. 310; Schmalz v. (a) [Harrison v. Jackson, 7 Term. Rep. (b) [If C. D., by a proper deed, authorize A. B. to execute a bond or other deed for him, A. B. may do this either by writing "C. D. by A. B. his attorney," or by writing "A. B. for C. D.," provided he delivers the instrument as the deed of C. D. Wilks v. Back, 2 East. 142.] (c) Atty v. Parish, 1 B. & P. New Rep. 104; Schack v. Anthony, M. & S. 573; 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. See per BAYLEY, J., in Tilson v. The Warwick Gas Light Co., 4 B. & C. 968. (d) Hunter v. Prinsep, 10 East. 378. (e) Leslie v. Wilson, 3 B. & B. 171, and 6 B. Mo. 415. (f) 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; but since the Judicature Acts, in general, the purchaser, when entitled to the freight, may sue in his own name. the nature of the original contract (g). Where, by a charter-party Chap. 1. 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 (h). There were, before the Judicature Acts, other technical rules of law applicable to charter-parties and other contracts under seal which it is thought unnecessary here to notice, especially as the instrument of contract by charter-party is now more commonly an agreement not under seal. Such a charter-party called a memorandum of charter 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 (i). The fact that the alleged principal is beyond the reach of the laws of the country, though not as a matter of law conclusive of the professed agent's liability, furnishes an argument more or less prevailing acccording to the circumstances of the case (k). 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 (1). Persons who had signed "by authority of and as agents of M.A.H.S. of Memel," (m) and "on behalf of N." (n), 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 (o). The defendants in one case had chartered a ship as agents to a principal named in the charterparty, and signed as his agents-but the words "merchants and charterers," were left unaltered in the printed form of the charter (g) Gibbon v. Young, 2 B. Moore, 224. Thompson v. Brown, 7 Taunt. 656. (h) White v. Parkin, 12 East. 578. (i) 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. As to when an agent signing a contract is personally liable upon it, see notes to Thomson v. Davenport, 2 Smith's Leading Cases; Hough v. Manzanos, 48 L. J. Ex. 398. (k) 2 Kent's Com., Part. V., 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. (1) Parker v. Winlow, 7 E. & B. 942; (m) Lennard v. Robinson, supra. Lewis v. Nicholson, supra. (n) Tanner v. Christian, 4 E. & B. 591; 24 L. J. Q. B. 91. (0) Parker v. Winlow, supra. |