70

The Lamington 7° contains an interesting compilation of salvage precedents.

A salvage service gives a maritime lien upon the property saved, enforceable by a proceeding in rem, and not dependent upon the salvor's retention of possession."1

It may be asserted against government property, if the possession of the government is not disturbed.72

Under Supreme Court admiralty rule No. 19, suit may also be brought in personam against the party at whose request and for whose benefit the salvage service has been performed.

But such proceedings, whether in rem or in personam, must now be brought within two years from the rendition of the service, unless there has been no reasonable opportunity to proceed within that time.78

would be responsible to the cargo. Lackawanna (D. C.) 220 Fed. 1000.

70 86 Fed. 675, 30 C. C. A. 271.

71 Sabine, 101 U. S. 384, 25 L. Ed. 982; Byrne v. Johnson, 53 Fed. 840, 4 C. C. A. 47; Barnett & Record Co. v. Wineman, 202 Fed. 110, 122 C. C. A. 222; Alcazar (D. C.) 227 Fed. 633.

72 Davis, 10 Wall. 15, 19 L. Ed. 875; Johnson Lighterage Co. No. 24 (D. C.) 231 Fed. 365.

73 Act Aug. 1, 1912, § 4, 37 Stat. 242 (U. S. Comp. St. § 7993), Appx. 425.

CHAPTER VII

OF CONTRACTS OF AFFREIGHTMENT AND CHARTER

PARTIES

70-72. “Contracts of Affreightment" Defined, and Distinguished from

Charter Parties.

73. Warranties Implied in Contracts of Affreightment against Unseaworthiness and Deviation.

74. Mutual Remedies of Ship and Cargo on Contracts of Affreightment.

75. Entirety of Affreightment Contract.

76. Apportionment of Freight.

77-78.

79.

80.

81.

82.

83.

84.

Ship as Common Carrier.

Bill of Lading-Making and Form in General.

Negotiability.

Exceptions in General.

Exception of Perils of the Sea.

"Charter Parties" Defined.

Construction of Charter Parties.

85. Conditions Implied in Charter Parties of Seaworthiness and

86.

against Deviation.

Cancellation Clause in Charter Parties.

87. Loading Under Charter Parties.

88.

Execution of Necessary Documents under Charter Parties.

89. Cesser Clause in Charter Parties.

"CONTRACTS OF AFFREIGHTMENT" DEFINED,

AND DISTINGUISHED FROM

CHARTER PARTIES

70. A vessel may be operated by her owners on their own account, or she may be hired by her owners to others.

71. The hiring of a vessel to others is usually done by char

ter parties.

72. When a vessel is operated by her owners on their own account, or contracts direct with her shippers, such contracts are called "contracts of affreightment.”

The contracts of vessels heretofore discussed have been those incidental transactions tending to facilitate the object of her creation. The class of contracts with which we are now to deal spring directly out of her use as a business enterprise.

A vessel is made to plow the seas, not to rot at the piers. But, with the exception of those which are used as toys by the rich, they do not plow the seas for amusement. The reward earned for transporting cargo is called "freight." In BRITTAN v. BARNABY,1 Mr. Justice Wayne defines "freight" as the hire agreed upon between the owner or master for the carriage of goods from one port or place to

another.

WARRANTIES IMPLIED IN CONTRACTS OF AFFREIGHTMENT AGAINST UNSEAWORTHINESS AND DEVIATION

73. In contracts of affreightment there is an implied warranty of seaworthiness and against deviation.

The warranty of seaworthiness in the relations between vessel and shipper is one of the most severe known to the law. It is that, at the commencement of the voyage, the vessel shall be thoroughly fitted for the same, both as regards structure and equipment. It is not merely that the vessel owner will exercise reasonable care to have her in this condition, or that he will repair such things as are discoverable, but it is an absolute warranty of fitness for the voyage against even such defects as are latent."

§§ 70-72. 121 How. 527, 16 L. Ed. 177. Under the limited liability act, the word "freight" includes prepaid fare of passengers, but not a government subsidy. Bourgogne, 210 U. S. 95, 28 Sup. Ct. 664, 52 L. Ed. 973; post, p. 371.

§ 73. 2 Northern Belle, 154 U. S. 571, 14 Sup. Ct. 1166, 19 L Ed. 748; CALEDONIA, 157 U. S. 124, 15 Sup. Ct. 537, 39 L. Ed.

The warranty against deviation is that the vessel will pursue her voyage by the accustomed route without unnecessary delay; though going to a port a little out of the straight course, when it is shown to be the usage of that navigation for vessels to stop by such a port, would not be considered a deviation."

These two warranties apply also to charter parties, and will be treated more fully in that connection.*

MUTUAL REMEDIES OF SHIP AND CARGO ON CONTRACTS OF AFFREIGHTMENT

74. It is a fundamental principle that the ship is pledged to the cargo and the cargo to the ship for the fulfillment of the conditions of the contract of carriage.

This reciprocal right of procedure is one of the most ancient doctrines of the admiralty. Under it, the vessel has a lien upon the cargo for its freight money."

This lien or right of the vessel to hold the cargo for its freight money differs from the admiralty liens heretofore discussed in the fact that it is dependent upon actual or constructive possession. The vessel owner who delivers the cargo unconditionally into the possession of the consignee loses his right to hold the cargo itself for his freight."

But one of the principles of the law of freight is that freight is not due until the cargo is unloaded and the consignee has an opportunity to inspect the goods and ascer

8 HOSTETTER v. PARK, 137 U. S. 30, 11 Sup. Ct. 1, 34 L. Ed. 568; Prussia (D. C.) 100 Fed. 484.

4 Post, p. 171.

$ 74. 5 Certain Logs of Mahogany, 2 Sumn. 589, Fed. Cas. No. 2,559; Seaboard (D. C.) 119 Fed. 375; Jebsen v. A Cargo of Hemp (D. C.) 228 Fed. 143.

• Pioneer Fuel Co. v. McBrier, 28 C. C. A. 466, 84 Fed. 495; Cargo of Fertilizer (D. C.) 88 Fed. 984; Appam (D. C.) 243 Fed. 230.

tain their condition. Hence the master of a vessel cannot demand his freight as a condition precedent to unloading; nor, on the other hand, can the consignee demand the goods as a condition precedent to paying the freight. The master, in other words, must discharge his goods, but not deliver them. If he and the consignee are dealing at arm's length, his proper procedure would be to discharge them in a pile by themselves, notifying the consignee that he does not give up his lien for freight; or, if necessary for their protection, discharge them into a warehouse, or into the hands of a third person. Then if the consignee, after a reasonable time allowed for inspection, does not pay the freight, the master can proceed in rem against the goods to enforce its payment.'

Conversely, the cargo has a right of procedure against the ship for any violation of the contract of affreightment. Transactions more thoroughly marine in nature than the relations of ship and cargo could hardly be imagined. Yet one result of the common-law warfare upon the admiralty in England, and the contention that contracts made on land, no matter what their subject-matter, were without the admiralty, was that in England the admiralty courts lost jurisdiction over such controversies."

It was partially restored by Act 24 Vict. c. 10, § 6, but only to the extent of giving a power to arrest, not a lien, and giving that only against vessels no owner or part owner of which resided in England or Wales.10

7 BRITTAN v. BARNABY, 21 How. 527, 16 L. Ed. 177; BAGS OF LINSEED, 1 Black, 108, 17 L. Ed. 35; Nathaniel Hooper, Fed. Cas. No. 10,032; Cassius, 2 Story, 81, Fed. Cas. No. 564; Treasurer, 1 Spr. 473, Fed. Cas. No. 14,159.

8 Rebecca, 1 Ware, 187, Fed. Cas. No. 11,619; Bulkley v. Naumkeag Steam Cotton Co., 24 How. 386, 16 L. Ed. 599; Humarock (D. C.) 234 Fed. 716.

Cargo ex Argos, L. R. 5 P. C. 146-148.

10 Pieve Superiore, L. R. 5 P. C. 482; Scrutton on Charter Parties and Bills of Lading, 376-380, 406.