Sidebilder
PDF
ePub

1819.

SAVILLE

against CAMPION

such other goods as they might think fit to load, and then to proceed to Madras and Calcutta, and there deliver the outward cargo, and after being refitted, should receive on board all such lawful goods as the freighter's agents might think fit to load, and should then proceed to London, and there deliver her homeward cargo, agreeably to bills of lading, and so complete the voyage. The charter-party contained the usual covenants, specifying the number of lay days, and a stipulation that the freighter should pay to the owner a given sum for every passenger carried in the ship; and that all the cabins of the ship, except one for the use of the captain, should be at the disposal, and for the benefit of the freighter, and that a supercargo, to be appointed by the freighter, should be conveyed out and home, and be found and provided with the ship's provisions. The charter-party then set out covenants from the freighter to load the ship at London, Madeira, and Madras, within the lay-days, &c., and then to pay to the owner for the freight or hire of the ship for the voyage, at and after the rate of 147. sterling per ton upon the ship's registered tonnage, and 27. 10s. per cent. primage on the amount of the freight, in lieu of port and pilotage charges; and that the freight and primage should be paid as follows, viz. 500l. to be paid in cash at the expiration of six months from the date of the charter-party, a moiety of the remainder to be paid by bills at two months after date from the day on which the ship should arrive in the Thames, on her return from her homeward voyage, and the residue by bills at four months' date from the same period. There was then a covenant with respect to demurrage, and also that the freighter should have liberty to appoint 16.

one

one James Gooch Thompson to proceed out and home in the ship, and not only to act as supercargo, but to take upon him the authority of the said John Price, in the stowage of the cargo, which should be done under the entire direction of James Gooch Thompson; but that he should not in any other particular interfere with the duties of Price as captain of the ship. The plea then, after shewing performance of the charter-party, by the defendant, in the earlier part of the voyage, stated that the commander did receive at Mådras, from the freighter's agents, the said goods in the declaration mentioned, they being the goods and chattels of the bankrupt, and afterwards arrived therewith in the river Thames, and gave notice thereof to the freighter and his agents, and was ready and willing, and tendered and offered to the bankrupt and the plaintiffs, his assignees, to make a right and true delivery of the homeward cargo, agreeably to bills of lading, on payment of the freight in the charter-party mentioned. The plea then stated, that the bankrupt and his assignees did not, upor request, when the goods were so tendered and offered them, offer to pay one half of the remainder of the freight by bills at two months after date from the day on which the ship arrived, or by bills at four months from the same date, but have refused and neglected so to do. The plea then stated, that the commander and mariners on board the ship, during the voyage, were paid by the defendant. And therefore that he detained and does detain the goods and chattels until payment be made to him of the remainder of the freight, according to the form and effect of the charter-party, as it was lawful for him to do for the cause aforesaid. To this plea the plaintiff demurred generally, and the L13 defend

1819.

SAVILLE

against CAMPION.

1819.

SAVILLE against CAMPION.

defendant joined in demurrer. The case was argued at the sittings at Serjeants' Inn, before this term,

by

Gaselee, in support of the demurrer. The defendant (who is the actual permanent owner of the ship) had, by the charter-party, parted with the possession to the charterer, who thereby became the temporary owner: the defendant, therefore, has no lien for the freight, because he had not the possession of the ship and cargo when the freight accrued due. Vallejo v. Wheeler (a), and The Trinity House v. Clark (b), are authorities to shew, that the charterer for the voyage is to be considered the owner pro tempore. It is true, that here the charter-party does not contain the words "let to freight." That, however, is immaterial; for if, upon the whole of the instrument, it appears to be the intention, that the one should divest himself of the possession and the other come into it, that is substantially a letting to freight for the voyage. For that is sufficient to constitute a lease. Bacon's Abridgm. tit. Leases, K. Co. Litt. 45. b. Bro. Abr. tit. Leases, 71. 4 Inst. 111. 112. Here the charterer was to have the entire use of the ship for the voyage, with the exception of one cabin, appropriated to the use of the captain who navigated the ship, which is the usual accómmodation. The circumstance of the master and mariners being paid and employed by the defendant, makes no difference, The Trinity House v. Clark. Hutton v. Bragg (c) appears from the printed report to be precisely in point. It is true, that the charter-party there did actually contain the words "let to freight."

(a) Cowp. 143.

(b) 4 Maule & Selw. 288.

13

(c) 2 Marsh. 339. That

That does not appear in the report, and the Court does not advert to those words in their judgment. The decision proceeds wholly on the ground that the owner had parted with the possession, and that the charterer had become owner for the voyage. Here, too, the freight reserved is in the nature of rent, being one entire sum for every ton of the registered tonnage of the ship, and not in proportion to the quantity of goods shipped on board, which shews that the entire thing was intended to be demised for the voyage. The mode of payment is likewise inconsistent with the right of lien, for the time when the bills were to become due might have expired before the goods could be landed.

Campbell, contrà. This dispute arises from the ambiguity of the expression, "to charter a ship," which may either mean a contract whereby the hull of the ship is let to hire like any other chattel, or a more contract to carry goods from port to port. In the former case, the possession passes to the hirer; in the latter, it remains with the owner. This charter-party is a mere contract to carry, and differs from a bill of lading only in extending to all the goods on board the ship. A ship so chartered differs from a general ship only in this, that the owner enters into a contract to carry with one individual instead of several. A bill of lading is a charter-party, as to so much of the ship as is occupied with the goods of the shipper. A charter-party like the present may be considered a bill of lading of the whole cargo. There is therefore no ground for saying that the owner did not remain in the possession of the ship. It is expressly averred in the plea, that he was in possession when the charter-party was executed. When

L14

1819.

SAVILLE

against CAMPION.

1819.

SAVILLE

against CAMPION.

When was he divested of the possession? The master and mariners were his agents: he covenants to receive the goods and to deliver them. If he never was in possession of the goods so as to have a lien on them for freight, how does this action come to be brought against him for detaining them? According to the ar

gument on the other side, in case of injury by collision, the action must be brought by the freighter, and not by the owner, the contrary of which has been expressly decided; and in case of deviation, the freighter's remedy against the owner would be, not covenant on the charter-party, but trover for the ship. So, a delivery of goods on board a chartered ship would be a delivery to the purchaser. But it has been held, that on board the chartered ship they are still in transitu, being in the possession of the ship-owner; and that on the insolvency of the purchaser, they may be stopped by the vendor. In Vallejo v. Wheeler, which has been so much relied upon, the charter-party is not set out; but it was clearly a letting to hire of the hull of the ship; for Aston J. says, "The hull of the ship belonged to Willis: but he had nothing to do with it, having chartered it to Darwin. The jury, there fore, did right to consider Darwin owner, pro hac vice ;” and the whole Court take the distinction between a general letting to freight and a covenant to carry. The Trinity House v. Clark proceeded on the ground that the possession of the crown was indispensably necessary to carry into effect the purposes of the contract. Paul v. Birch is (a) an authority in favour of the defendant; for although the charterers had power to appoint the master and mariners, Lord Hardwicke decreed that the

(a) 2 Atk. 621.

owner

« ForrigeFortsett »