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gers to and from the United Kingdom to Newfoundland and the coast of Labrador (t), the United States (u), and the British colonies in North America (x); and these enactments may be considered the groundwork of subsequent legislation on this subject.

All these statutes were repealed by the 4 Geo. 4, c. 84, "for regulating the carriage of passengers from the United Kingdom to foreign parts;" and this Act having also, about two years afterwards, been repealed by the Act for the consolidation and amendment of the laws relating to the customs, the 6 Geo. 4, c. 116, "for regulating vessels carrying passengers to foreign parts," was passed.

By the 9 Geo. 4, c. 21, further provisions were introduced to regulate the carriage of passengers from the United Kingdom to the continent and islands of North America; which Act was repealed by the 5 & 6 Wm. 4, c. 55, "for regulating the carriage of passengers from the United Kingdom." The last-mentioned Act was repealed by the 5 & 6 Vict. c. 107, which, as well as the 8 & 9 Vict. c. 14, the 10 & 11 Vict. c. 103, the 11 & 12 Vict. c. 6, the 12 & 13 Vict. c. 33, the 14 Vict. c. 1, and the 15 & 16 Vict. c. 44, have been superseded by the Passenger Act, 1855, 18 & 19 Vict. c.; which, with some modifications relating to the passage of natives of Asia or Africa, and between the island of Ceylon and certain parts of the East Indies, adopted from the 16 & 17 Vict. c. 84, is now the law upon this subject.

This Act, which came into operation on the 1st of October, 1851,5 applies to every passenger ship proceeding on any voyage from the United Kingdom to any place out of Europe, and not within the Mediterranean Sea, and on every colonial voyage, such as it describes. It is to be carried into effect by the Colonial Land and Emigration Commissioners.

A great variety of provisions are enacted by it, having for their object the protection from imposition, the number, health, medical care in sickness, diet, berthing, and safety of the passengers; the "rights of passengers;" the return of their passage money, and compensation if a passage be not provided pursuant to contract; their maintenance for a period after their arrival; the construction, ventilation, and internal arrangements and survey of the ship; the number of boats, life-boats, and life-buoys it must carry; the computation of voyages; the quantity of water and provisions to be provided for each statute adult passenger-i.e., of the age of twelve years or upwards; the licensing of passage brokers, and other miscellaneous matters, for the detail of which the reader is referred to the Act itself in the Appendix. By sec. 59, power is given to her Majesty in council to prescribe rules for preserving order and securing cleanliness and ventilation on board the ship; and by sec. 87, to the Governor-General of India in council (by any Act to be passed for that purpose), to adopt its provisions for India.

4. The Merchant Shipping Act, 1854, 17 & 18 Vict. c. 104, contains * also provisions relating to the build, equipment, inspection, survey,

(t) 53 Geo. 3, c. 36; 56 Geo. 3, c. 83.

(u) 56 Geo. 3, c. 114. (x) 57 Geo. 3, c. 10.

* and certificates of passenger steam-ships (that is, all British ships carrying passengers between any place or places in the United Kingdom, except steam ferry-boats or "bridges" working in chains)-the number of passengers they are certified to carry-the build of iron steamers, their engines, boats, life-boats, life-buoys, and provisions to prevent the danger of collision, some of which will be noticed in the chapter on "Collision," the reader being referred for the remainder to the Act itself (y).

5. With respect to misconduct and the maintenance of order on board passenger ships, it is enacted, that persons who, having been refused admission into, or who refuse to quit a steamer on being requested so to do, on account of its being full (the full amount of their fares, if paid, being returned or tendered to them), incur a penalty not exceeding 408., to be paid to the owner (2).

Any person who travels in any passenger steamer which has been duly surveyed without having paid his fare, or proceeds beyond the distance for which he has paid without paying the additional fare, with intent to avoid such payments, or who wilfully refuses to quit such steamer at the point to which he has paid his fare, incurs a penalty of 5s., payable to the owner, in addition to the fare (a).

The master of any home-trade passenger steam-ship may refuse to receive, or may put ashore at any convenient place without returning his fare, any person who, by reason of drunkenness or otherwise, is in such a state, or misconducts himself in such a manner, as to cause annoyance to other passengers on board (b).

The master is not bound to receive or carry in any ship goods of a dangerous nature, or parcels which he suspects to contain goods of a dangerous nature, and may cause such parcels to be opened to ascertain the fact; and any person who carries or sends by any ship any such goods, without distinctly marking their nature outside the package, or giving notice to the master or owner, is liable to a penalty of 1007. (c).

The owner or master of any steam-ship, which has sustained or caused any accident occasioning loss of life, or any serious injury to any person, or has received any material damage affecting her seaworthiness, is required, under a penalty of 50l., within twenty-four hours, or as soon thereafter as possible, to send a report of the particulars thereof to the Board of Trade (d).

The owner of any steam-ship, the loss of which, owing to her nonappearance or other circumstance, he has reason to apprehend, is required, under the same penalty, to send notice thereof within a reasonable time to the Board of Trade (e).

And in every case of collision, in which it is practicable to do so, the master is required, under a penalty of 20%., to enter, immediately after the occurrence, a statement thereof and of its circumstances in the official log-book (if any), to be signed by himself, and by the mate * or one of the crew (ƒ).

PART THE FOURTH.

OF THE CARRIAGE OF GOODS IN MERCHANT SHIPS.

CHAPTER I.

OF THE CONTRACT OF AFFREIGHTMENT BY CHARTER-PARTY; AND HEREIN,

(Ss.) 1. Of the Instrument of Contract by Charter-party.

2. Of the usual Contents thereof. Stipulations as to Voyage, Freight, Burthen of Ship, &c.

3. Of Stipulations as to Time for providing and receiving Cargo.

4. Construction of Charter-parties.

5. Of Covenants in Charter-parties. Conditions precedent.

6. Evidence of Usage of Trade, when admitted in their Interpretation.

7. Bills of Lading for Goods shipped under Charter-party.

8. Of the Charter-parties of the East India Company.

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 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 part-owner may let his share to another. But contracts of this nature do not form the subject of the present inquiry.

The term charter-party is generally understood to be a corruption of the Latin words charta-partita (a); 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 cor

(a) Hargrave's note on 1st Inst. 229. Pothier, Traité de Charte-partie, num. 1, gives the same etymology of this word from Boerius, but with a different explanation. "It was formerly usual," says Boerius, "in England and Aquitaine, to reduce contracts into writing on a chart, divided afterwards into two parts from top to bottom, of which each of the contracting parties took one, which

they placed together and compared, when they had occasion to know the terms of their contract." If from this account we are to understand that the contract was only once written, and the paper or parchment afterwards cut in two, the practice must have been very inconvenient, as neither party could, in the absence of the other, inform himself of the stipulation he had engaged to perform.

respondence, 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. 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 (b). In a foreign port it must of necessity, if it be by deed under seal, which is often the case, be executed by the master only, and the merchant or his agent, unless the parties have an agent resident in such port, authorized to this purpose by deed or letter of attorney, under seal.

* It is now, perhaps, more commonly an agreement not under seal, and is called a memorandum of charter.*

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 (c), 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 (d). 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 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

(b) 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; Humble v. Hunter, 12 Q. B. 310; Schmalz v. Avery, 20 L. J. Q. B. 229; Jenkinson v. Hutchinson, 13Q.B.744; Carrv. Jackson, 7 Exch.382.

(c) Harrison v. Jackson and Others, 7 Term Rep. 207, and Horsley v. Rush and

Another (the case of a charter-party), there cited.

(d) 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 writ-, ing "A. B. for C. D.," provided he delivers the instrument as the deed of C. D.-Wilks and Another v. Backe, East, 142.

specially framed on the deed itself (e). 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 (f). 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 (g). 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 (h). 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 (i), 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 (k). 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 (1).

Another technical rule of the law of England, applicable also to the contract by charter-party under seal, should be noticed in this 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

(e) 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 Warwick Gas Light Company, 4 B. & C. 968.

(f) Schack and Another v. Anthony, 1 M. & S. 573.

(g) Hunter v. Prinsep, 10 East, 378.

(h) Leslie v. Wilson and Others, 3 B. & B. 171, and 6 B. Mo. 415.

(i) 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.

(k) Morrison v. Parsons, ubi supra.

(1) 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.