sale to the freighter." The declaration then stated, that the ship being tight, staunch, &c., received on board a cargo, in London, and afterwards set sail, and proceeded towards the island of St. Bartholomew, by the directions of the freighter; and that afterwards, and before her arrival there, or at any other port or place, the ship was lost by the perils of the sea; and that she was last seen or heard of on the 9th day of December; and that the freight for the hire of the ship, from 4th October, up to the day of her loss, amounted to 14001. The breach alleged was the non-payment of the freight. Plea, after craving oyer of the charterparty, that the ship never arrived at the island of St. Bartholomew, being her first destined port, according to the form and effect of the charter-party of affreightment. To this plea there was a demurrer and joinder. Campbell, in support of the demurrer. Although the plea be bad, the question must turn ultimately upon the sufficiency of the declaration, and that again will depend upon the construction of the covenants in the charter-party for the payment of freight; viz. whether the true meaning be that freight was to be payable at all events, or only in the event of the arrival of the ship at her first destined port. Now, although in general freight is not payable till the performance of the voyage, yet it is competent to parties, by express stipulation, to contract otherwise; and here they have made the freight payable de die in diem, without reference to the successful termination of the voyage. There are two distinct covenants, one is, "to pay freight to C 2 the 1818. GIBBON against MENDEZ. 1818. GIBBON against MENDEZ. the owner, at so much per ton per month, for six months at least, and so in proportion for a less time than a month, until her discharge in London, or being last seen or heard of." Now, if the charter-party had stopped there, the plaintiff would be entitled to recover freight up to the time of the loss of the ship; but there then comes a distinct covenant, as to a particular mode in which the freight may be paid; this latter covenant, however, by no means controuls or dispenses with the former, which was for the payment of freight generally. It stipulates, "that the freight is to be paid to the commander of the ship for the time being, so much as should be earned at the first destined port abroad, within ten days after her arrival there, and previous to the delivery of the cargo, and at the expiration of every calendar month, during the continuance of the voyage, and the remainder on the final discharge of the ship." This is one mode in which the freighter is bound to pay the freight, if required; but it is by no means the only one; for by his former covenant, he was bound to pay freight to the owner, at so much per month and that it is not the only mode in which the freight is to be paid, appears most clearly from the subsequent covenant, stipulating, that the freighter might, at any time during the voyage, purchase the ship for a given sum, upon giving notice to the owner, and paying the freight then due. The freight then due must be paid to the owner, who is resident here, and not to the commander, who is absent on the voyage,. and events might occur which might render the latter mode of payment impossible; for example, if the ship were to founder in her homeward voyage, and the master master were lost, the freight due at the time of the loss could not be paid in the mode stipulated; yet in such a case, it could not be argued that no freight would be payable. Inasmuch, therefore, as the payment of freight due during the voyage to the owner is contemplated by the charter-party, and as by events the particular mode prescribed by the latter covenant may become impossible, it follows, that the mode of payment prescribed in that covenant is not the only mode intended by the parties. In Havelock v. Geddes (a) Lord Ellenborough is reported to have said, that a covenant prescribing the mode of payment is not to be considered as creating a contingency on which the payment of freight was to depend. Mackrell v. Simond (b) the freight was to be paid on the arrival of the ship in London: the vessel performed her outward voyage, and was lost in her homeward; the event, therefore, upon which the payment of freight, according to the prescribed mode, was made to depend, never happened; yet, as the charter-party expressly mentioned an outward and a homeward voyage, it was holden, that the owners were entitled to recover freight for three months, which was the pe riod of the outward voyage; that case, therefore, is a decisive authority in favour of the plaintiff's right to recover. In 1818. GIBBON against MENDEZ. Richardson, contrà. The true meaning of this covenant is, that freight is to become payable only in the (a) 10 East, 567. (b) Abbott, 345. C 3 event 1818. GIBBON against MENDEZ. event of the ship's arrival at her first destined port. The covenant is not to be split; the whole must be taken together; the freight is to be paid according to the tonnage of the ship and duration of the service: so far the covenant fixes the rate of the freight, and the time during which it is to continue to run; but the period when it is to become due is only fixed by the subsequent part of the covenant, and by that no freight is to become payable until the arrival of the ship at her destined port. In Byrne v. Pattinson (a) the freighter covenanted to pay freight at so much per month, to be paid on the arrival of the ship at Liverpool: the ship being lost on her homeward voyage, it was holden, that no freight was payable; and in Smith v. Wilson (b), the covenant was to pay freight at so much per month, fixing the period when it was to commence, and how long it was to endure, and then there was a stipulation, that such freight should be paid on her arrival and discharge at a port in Great Britain; and it was holden, that such arrival at a port in Great Britain was a condition precedent to the right of recovering any freight whatever. As to the case put, of the ship's being lost in her homeward voyage, and the consequent loss of the captain, payment to his personal representative in that event would be sufficient to satisfy the terms of the covenant. BAYLEY J. The question in this case is, whether, in the event stated in the pleadings, the plaintiff is entitled to recover any part of the freight; and that question (a) Abbott, 347.. (b) 8 East, 437. turns turns upon this: whether by the terms of the charterparty freight is payable pro rata if the ship never reaches her outward port. We must not make a new contract for the parties, but must look at the terms in which the contract itself is expressed. The words of the covenant are "that the freighter should pay to the owner freight at so much per ton per calendar month for the space of six calendar months at least, and so in proportion for any time less than a calendar month, and at the like rate for all such further time as the ship might be kept and detained in the service of the freighter, and until her final discharge in the port of London, or up to the day of her being lost, captured, or last seen or heard of." So far the covenant provides for the rate at which freight is to be paid, the time when the earning of the freight is to commence, and the period when it is to end; it then goes on to fix the time when the freight is to become payable. The words are "such freight to be paid to the commander of the said ship for the time being, in manner following; viz. so much and such part thereof as might be earned upon the arrival of the said ship at her first destined port, to be paid within ten days next after her arrival at such port, and previous to the delivery of her cargo;" and it then provides for the payment of the freight that should subsequently become due; but no provision whatever is made for the payment of any freight until the arrival of the ship at her first destined port. It has been argued that these provisions constituted two distinct covenants, one to pay freight to the owner generally, and another to pay to the commander in a particular way. In my opinion they constitute one entire continued C 4 1818. GIBBON against MENDEL. |