Sidebilder
PDF
ePub

18. But as the right to freight does not com[314] mence until the ship has broken ground and begun the voyage, no partial payment can be claimed for goods laden on board, if even without the fault of the master the ship is prevented from actually setting forth on the voyage. And therefore in the case of a ship, which took on board a cargo in Salt River, in Jamaica, at a very great expense to the owners, (who by the usage of the West-India trade fetch the cargoes from

tion was brought on the charter-party to recover the $950 for the homeward freight, the $1800 having been paid pursuant to the stipulation in the charter-party. The Court were of opinion that the plaintiffs could not recover in an action upon the charter-party. That as the contract was entire, the ship being chartered for a specific sum for the voyage, and payment was to be made only upon the delivery of the cargo at New-York, it was a condition precedent that the cargo should be there delivered before the right to recover freight would accrue. That not having been done within the intent of the parties in the present case, the plaintiff could not recover in the present form of action. At the same time the court thought that the plaintiffs, consistently with the case of Luke v. Lyde, 2 Burr. 882., would be entitled in another form of action to a freight in proportion to the value of the goods actually received, which, deducting the salvage in this case, would be one half of the cargo. Post & another v. Robertson, 1 John. New-York Rep. 21. But see the argument of Justice Livingston, who dissented in the same case from the majority of the Court on the point of a pro ratâ freight being due.

An action was brought on a charter-party, which was dated 6th of February, but in fact was not executed (and was so averred) until 15th of March, and it contained a covenant by

the shore at their expense,) and which actually cleared out for the voyage, but, while waiting for convoy, was cut out of the river by two French privateers, and being afterwards retaken, was carried into Port Royal, where the cargo was sold under an order of the Court of Admiralty, and the proceeds thereof with the deduction of salvage paid to the merchants: it was decided that nothing could be claimed of the merchants, although

the owner that the ship should proceed from Deptford where she then lay, on or before the 12th day of the said February, on her outward bound voyage, and return, &c., and a covenant by the freighter that in consideration of every thing above-mentioned, &c., he would pay a certain freight for the voyage. The voyage was performed and freight earned; and the question was whether the plaintiff was entitled to recover upon the charterparty, it appearing that the vessel had not sailed on or before the 12th of February, according to the charter-party. The court were of opinion that this part of the charter-party, even admitting it to be a condition precedent, having been rendered impossible to be performed by the parties themselves, not having executed the deed until after the time appointed to do the act, the performance of it was dispensed with and formed no part of the contract. Lord Ellenborough inclined to believe that had it been possible to be performed, it would have been a condition precedent; but Mr. Justice Lawrence was of opinion that it was rather of the nature of a mutual independent covenant for the non-performance, of which an action might, under certain circumstances lay; that it resembled the case of Constable v. Cloberie, Palm. 397. cited Abbot, 188., in which case the substance of the covenant was, that the vessel should sail the voyage, and not merely that she should sail with the next fair wind. Hall v. Cazenove, 4 East. Rep. 477.

each of the Judges expressly recognized the rule of the marine law as to the partition of freight pro ratâ itineris : the Court holding, that in this case there had been no commencement of the voyage, and therefore no freight could be due; and that, as the freight was by the contract the only remuneration of all the services performed by the owners, they were not entitled to any recompence for the expense of taking the goods on board (z). (1)

er,

19. It often happens that a ship is hired by [315] a charter-party to sail from one port to anothand from thence back to the first, as for instance from London to Leghorn, and back from thence to London, at a certain sum to be paid for every month or other period of the duration of the employment. Upon such a contract, if the whole is one entire voyage, and the ship sail in safety to Leghorn, and there deliver the goods of the merchant, and take others on board to be brought to London, but happen to be lost in her return thither, nothing is due for freight, although the merchant has had the benefit of the voyage to Leghorn:

(2) Curling v. Long, 1 Bos. & Pull. 634.

(1) But, where the charter-party is for the voyage round, at a certain freight for the outward voyage, and a different freight for the homeward voyage; yet the contract is so far considered entire, that a policy on the freight on the homeward voyage "at and from the port of loading" is considered to.attach, while the ship is delivering her outward cargo at the port, and before any of the homeward cargo is taken in. Horncastle v. Suart, 7 East. Rep. 400. S. P. Thompson v. Taylor, 6 T. Rep.

478.

but if the outward and homeward voyage are distinct, freight will be due for the proportion of the time employed in the outward voyage (a). ·

Upon this point Malyne mentions a remarkable case of five ships, in which he himself was interested as one of the merchant freighters. The whole five were freighted out from this country for Leghorn and Civita Vecchia, and back from those places. They all performed their outward voyage, but before any part of the homeward cargo was shipped, they all set sail, and came away, through fear of being taken by the gallies of Don Andrea Doria, who intended to surprise them, the Grand Armada being then preparing in Spain. Two of the ships had waited for their lading the whole time stipulated by their charter-parties, and the mas- [316] ters had made their protests against the factors, who should have laded them. These two, says the author, were by the law of the Admiralty adjudged to have deserved their whole freight. Two others, not having waited the stipulated time, could not be found to have deserved any freight at all, although they were laden outward. The fifth ship also had not waited the stipulated time, but her charter-party contained a proviso, that if she should be taken or cast away on her. return out of the Streights, the freight outwards, which was accounted half, should be paid; and that half and no more was adjudged to the master. (b).

It should seem that this proviso, in the case of the fifth ship, occasioned the outward and homeward

(a) This proposition is laid down by Molloy, book 2. ch. 4. sect. 9. and he cites in support of it the before, mentioned case of Bright v. Cowper,

with a reference to Brownlow, in
whose report the point does not
appear. Ante 297. sect. 12.
(b) Malyne, p. 98.

voyages to be considered as distinct voyages, for the event mentioned in the proviso had not happened. And a similar construction was given to a very different charter-party in the following case (c). Mackrell, the owner of a ship called the Richard, lying in the river Thames, let his ship to freight by a charter-party dated 9th of March 1774, to Simond & another" by the month,. "for such time as she should be employed in [317]" performing a voyage from London to Plym

66 outh, and the island of Grenada, and from athence back to London," and whereby the plaintiff covenanted," that the ship should, pursuant to the or"ders and directions of the freighters, their factors or

assigns, prosecute and perform the voyage above" mentioned, (the dangers and perils of the sea, and "the restraint of princes and rulers excepted,) and "should in such outward and homeward voyage load "and unload all lawful goods and that his ship's company and boats should aid and assist in unloading and reloading the said ship's cargoes as customary at the island of Grenada, and that he would pay all portcharges and pilotage. In consideration whereof the defendants covenanted that they "would load and un"load the ship, and give the master proper orders in << respect thereof and that the ship should be discharg ❝ed out of her said monthly employ on the delivery "of her homeward cargo in London, and also should " and would well and truly pay or cause to be paid to "the said owner, his executors, administrators, or as

(c) Mackrell v. Simond & Hankey, in K. B. Trin. T. 16 Geo. 3. It was an action of covenant on the charter-party, in the first count of which the plaintiff claimed freight for the period of the voyage to Gre

nada; in the second up to the day of the loss of the ship. The defendants demurred to both counts. Judgment was given for the plaintiff on the first count, and for the defendants on the second.

« ForrigeFortsett »