Wilson v. Bank of Victoria (L. R. 2 Q. B. 203; 36 L. J. Q. B. 89; 16 L. T. 9; 15 W. R. 693; 2 Asp. Mar. C. 449) PAGE 215, 216 v. Gabriel (4 B. & S. 243; 8 L. T. 502; 11 W. R. 803; v. Hicks (26 L. J. Ex. 242) 272 228, 230 v. London S. N. Co. (L. R. 1 C. P. 61; 2 Asp. Mar. C. 279) v. Rankin (L. R. 1 Q. B. 162; 35 L. J. Q. B. 87; 13 L. T. 564; 14 W. R. 198; 2 Asp. Mar. C. 161, 287). v. Wilson (L. R. 14 Eq. 32; 41 L. J. Ch. 423; 26 L. T. 346; 20 W. R. 436; 1 Asp. Mar. C., N. S. 265) Wiseman v. Vandeputt (2 Vern. 202). Witted v. Galbraith ((1893), 1 Q. B. 577; 41 W. R. 395; 9 T. L. R. 300). Witzler v. Collins (35 Am. Rep. 327). Wood v. Jones (7 D. & R. 126). 9, 70 269 138 291 115 139 176, 178, 179, 181 Woodley v. Michell (11 Q. B. D. 47; 52 L. J. Q. B. 325; 48 L. T. Worms v. Storey (11 Ex. 427; 25 L. J. Ex. 1) 164 82 69, 70, 71, 185 45 L. T. v. New Zealand Co. (4 Ex. D. 165; 40 L. T. 413; 4 Asp. Wyllie v. Harrison (13 Sc. Sess. Cas. 4th Ser. 92) Xantho, The (12 App. Cas. 503; 55 L. T. 203; Zeta, The ((1892) P. 285; 61 L. J. P. 100; 40 W. R. 535; Zeus, The (13 P. D. 188; 59 L. T. 344; 37 W. R. 127; 6 Asp. Zwilchenbart v. Henderson (9 Ex. 722; 23 L. J. Ex. 234) ALPHABETICAL GUIDE TO CASES. In the illustrations contained in the following pages, an attempt has been made to lessen the labour of mastering the facts by using particular letters to represent particular characters in the case. Thus, except in a few cases where they obviously stand for places, A is always a shipowner, C a charterer, G a consignee; X is always the port of loading; Z, the port of discharge. THE CONTRACT OF AFFREIGHTMENT. SECTION I-NATURE AND CONSTRUCTION OF THE Article 1.-Nature of the Contract. WHEN a shipowner, or person having for the time the right as against the shipowner to make such an agreement, agrees to carry goods by water, or to furnish a ship for the purpose of so carrying goods, in return for a sum of money to be paid to him, such a contract is called a contract of affreightment, and the sum to be paid is called freight. When the agreement is to carry a complete cargo of goods, or to furnish a ship for that purpose, the contract of affreightment is almost always contained in a document called a charterparty (a), the shipowner letting the ship for the purpose of carrying, or undertaking to carry, the charterer hiring the ship for such purpose, or undertaking to provide a full cargo. Such a document is usually signed before any steps are taken under the contract it contains. When the agreement is to carry goods which form only part of the intended cargo of the ship, the contract of affreightment as to each parcel of goods shipped is evidenced in a document called a bill of lading, which serves also as a receipt by the shipowner, acknowledging that the goods (a) As to stamps on charters, see 33 & 34 Vict. c. 97, ss. 15, 66-68; Appendix III. Charters made entirely abroad can be stamped within two months of their receipt in this country. The Belfort (1884), 9 P. D. 215. B have been delivered to him for a certain purpose. A bill of lading is rarely signed until some steps have been taken in pursuance of the contract it evidences. By the custom of merchants indorsement of the bill of lading may pass the property in the goods, for the shipment of which it is a receipt. and by statute such an indorsement will also confer on the indorsee the same rights and liabilities as if the contract evidenced in the bill of lading were originally made with him (b). The charterer with whom the shipowner enters into the contract of affreightment may intend to supply the cargo himself. In this case, when the cargo is shipped, a bill of lading will almost always be signed, which is usually, while in the hands of the charterer, merely a receipt for the goods, but which may be evidence of a contract adding to or varying the contract between them contained in the charterparty (c). Or the charterer may intend to enter into sub-contracts of carriage with other shippers, who provide all or part of the cargo. In this case, as each shipper ships his goods, a bill of lading will be signed, evidencing a contract between the shipper on the one hand, and, according to circumstances, the shipowner or charterer on the other. Such contract will be independent of the contract contained in the charterparty, except in so far as it expressly incorporates it (d). Article 2.-Nature and Effect of a Charterparty. A charter may operate as a demise or lease of the ship itself, to which the services of the master and crew may or may not be superadded. The charterer here becomes for the time the owner of the vessel; the master and crew become to all intents his servants, and through them the possession of the ship is in him (e). (b) See Section V. post, Articles 57, 58, 75. (c) See Article 18, post; and Rodocanachi v. Milburn (1886), 18 Q. B. D. 67. (d) See Articles 18, 19, post. (e) Sandeman v. Scurr (1866), L. R. 2 Q. B. 86, 96. The language in the text Or it may be that all that the charterer acquires by the charter is the right to have his goods conveyed by a particular vessel, and, as subsidiary thereto, to have the use of the vessel and the services of the owner's master and crew. In this case, notwithstanding the temporary right of the charterer to have his goods loaded and conveyed in the vessel, the ownership and also the possession of the ship remain in the original owner, through the master and crew, who continue to be his servants. If the owner's master, by agreement of the owner and charterer, acquires authority to sign bills of lading on behalf of the latter, he nevertheless remains in all other respects the servant of the owner (ƒ). Note. The modern tendency is against the construction of a charter as a demise or lease. The cases of demise are old cases, and their authority has been somewhat shaken by recent decisions. But each case must turn on the particular terms of the charter. The chief results of the construction of a charter as a demise would be: (1) that the owner, being out of possession, would have no lien at common law for the freight due under the charter; (2) he would not be liable to shippers, who did not know of the charter, or to the charterer, for acts of the master and crew (a); (3) the master would be the agent of the charterer, so that delivery to him of goods bought by the charterer would, unless the bill of lading was made deliverable to shipper or order, divest the unpaid vendor's right of stoppage in transitu. Under a charter not a demise, the master would be a mere carrier, and not the charterer's agent, and the right of stoppage would remain (g): (4) If a chartered ship earned salvage, the salvage reward is that of Cockburn, C.J. Lord Esher, in Baumvoll v. Gilchrest (1892), 1 Q. B. at p. 259, prefers to put it thus: the question" (whether an owner was liable for acts of the captain of his ship) "depends, where other things are not in the way, upon this: whether the owner has by the charter, where there is a charter, parted with the whole possession and control of the ship, and to this extent, that he has given to the charterer a power and right independent of him, and without reference to him to do what he pleases with regard to the captain, the crew, and the management and employment of the ship. That has been called a letting or demise of the ship. The right expression is that it is a parting with the whole possession and control of the ship.' Cf. per Lopes, L.J., at p. 261. This view is approved by the House of Lords in the same case; (1893), A. C. 8. (f) Sandeman v. Scurr (1866), L. R. 2 Q. B. 85, 96; cf. Baumvoll v. Gilchrest & Co. (1893), A. C. 8; and see Art. 18. (a) cf. Bamvoll v. Gilchrest & Co., (1893) A. C. 8. (g) Berndtson v. Strang (1868), L. R. 3 Ch. 588; Ex parte Roscrear China Clay Co. (1879), L. R. 11 Ch. D. 560. Vide post, Articles 68, 69. |