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A charter-party executed by the master in his name, when he is in a foreign port, in the usual course of the ship's employment, and therefore, under circumstances which do not afford evidence of fraud, or when it is executed by him at home, under circumstances which afford evidence of the expressed or implied assent of the owners, is binding upon the owner.
The freighter may load the ship either with his own goods or with the goods of another, or he may re-let the whole or part to others, provided there is no clause in the charter-party prohibiting him from so doing
The charter-party usually expresses the burden of the vessel; and, in so doing, care should be taken to state it according to the actual number of tons burden, or to the number in the certificate of registry.
The usual covenant, that the ship shall be seaworthy, and in a condition to carry the goods, binds the owner to prepare and complete everything to commence and fulfil the voyage.
The vessel must be properly dunnaged, agreeable to the usages of the trade in which she is engaged, or according as the nature of the cargo may require; and in the stowage of the cargo, the various articles must be arranged and placed in the most approved method, so as to prevent damage.
In all maritime transactions, expedition is of the utmost consequence —for even by a short delay the object or season of a voyage may be lost; and, therefore, if either party be not ready at the time appointed for the loading of the ship, the other may seek another ship or cargo, and bring an action to recover the damages he has sustained.
If the charter-party stipulates for a full and complete cargo, the master must take on board as much as he can, with safety and without injury to the ship; and the freighter is bound to furnish the same, either of his own goods or the goods of others.
The master must not take on board any contraband goods, or have in his possession any false or colourable papers, and so rendering the ship liable to seizure; but he must take and keep on board all the papers and documents required for the protection of the ship and cargo in all the countries to which he is trading.
If the master receive goods at the quay or beach, or send his boat for them, his responsibility commences with the receipt of them. With goods intended to be sent coastwise, the responsibility of the wharfinger ceases upon the delivery of them to the mate of the vessel, upon the wharf. As soon as he receives the goods, the master must provide adequate means for their protection and security.
After the vessel has been fully loaded, cleared at the Custom House, and all the requisite Customs and other documents on board, and all other charges paid, the master must, as soon as the weather permits, commence the voyage without delay, but not so as to sail into tempestuous weather, or during a gale.
During the time of war, it is a usual stipulation that vessels shall sail with convoy; under this obligation, the master must repair to the place of rendezvous in proper time, and be careful to procure all the instructions issued by the commander of the convoy; and if the master neglect to proceed with convoy, he will be answerable for all losses that may arise from the want of it.
Having commenced the voyage, the master must proceed to the port of destination without delay, and without stopping at any intermediate port, or deviating from the straight course of the voyage, unless in case of convoy, which the master must follow as far as possible. A deviation from the usual course may be justified for the purpose of repairs, or for avoiding an enemy or the perils of the sea, as well as by the sickness of the master or seamen, and the mutiny of the crew.
It is usually stipulated in charter-party and bills of lading that a certain number of days, called lay days, shall be allowed for loading and discharging the cargo, and that the freighter may detain the vessel for a further specified time on payment of a daily sum for such overtime (demurrage). If the vessel be detained beyond the two designated periods, the freighter is liable to an action on the contract, although the delay may not be attributable to any
fault or omission on his part. The lay days are either running days, including every day—or working days, excluding Sundays and Custom House holidays-or weather working days. The charter-party should specify whether they are working or running days.*
Notice should be given every day that the ship is on demurrage, and the amount of demurrage due claimed. On Saturday, the demurrage for the following Sunday should be claimed.
When no lay days are specified, the length of time for loading and unloading must be determined by the nature of the cargo, or by the usual and customary time allowed at the port.
If any clause of the charter-party is ambiguous, the interpretation should be liberal; or if the charter-party is silent in respect to any point, the usage of the trade in which the ship is employed must be adopted.
* In London, “days” mean “working days,” and Sundays and holidays do not count until the ship is on demurrage. After that, all days count.
By an exception in the charter-party-not to be liable for an injury arising from the act of God, the Queen's enemies, fire, &c.—the owner or master is not responsible for any injury arising from the sea or the winds, unless it was in his power to prevent it, or it was occasioned by his imprudence or gross neglect.
FREI G H T.
FREIGHT. -The sum paid by the merchant or other person hiring a ship, or part of a ship, for the use of such ship or part, during a specified voyage or a specified time.
The rate of freight is usually fixed by the charter-party or bill of lading; but in the absence of any formal stipulations in reference to the subject, it would be determined by the custom or usage of the trade.
In the absence of an express stipulation to the contrary, freight is not due until the whole cargo is ready for delivery, or has been delivered to the consignee in accordance with the contract for its conveyance.
If a consignee receive goods in pursuance of the usual bill of lading, by which it is expressed that he is to pay the freight, he by such receipt, makes himself liable for the freight. But a person acting as agent for the consignor, and who is known to the master to be acting in that character, does not make himself personally liable for the freight by receiving the goods, even if he should enter them in his own name at the Custom House.
If a portion of a cargo be thrown overboard for the necessary preservation of the ship and the remainder of the goods, and the ship afterwards reach the place of destination, the value of this part is to be answered to the freighter by way of genoral average, and the value of the freight thereof allowed to the owner. So, if the master be compelled, by necessity, to sell a part of the cargo for victuals or repairs, the owners must pay to the freighter the price which the goods would have fetched at the place of destination, and therefore are allowed to charge the merchant with the money that would have been due if they had been conveyed thither."
If the cargo, or any part of it, is damaged during the voyage through the fault or negligence of the master or crew, the freighter is entitled
* If chartered, but have signed bills of lading to a consignee, before you part with the cargo the consignee should produce the endorsed bill of lading. He should also undertako for payment of freight according to bills of lading, particularly if you have any doubt of your charterer's solvency.
to compensation, being the amount of depreciation in the value of the goods, less freight; if, however, the damage arises from circumstances over which the master has no control,—such as the peculiar nature of the goods (even if this is increased by confinement in the ship), or the perils of the sea, the act of God,—the merchant must bear the loss and pay the freight.
The time and manner of payment of freight are frequently regulated by express stipulations in a charter-party, and when that is done, the payment must be according to the agreement; but if there be no express stipulation contrary to, or inconsistent with, the right of lien, the goods may be retained until the freight is paid," for the master is not bound to deliver them, or any part of them, without payment of the freight and other charges in respect thereof. But the master cannot detain the cargo on board the vessel, as the merchant would, in that case have no opportunity of examining the condition of the goods. When the master is doubtful of payment, the practice in this country is to send the goods to a public wharf (if there is no stipulation that they are to be delivered at any particular wharf), ordering the wharfinger not to part with them until freight and other charges are paid.
When a ship, before the completion of her voyage, becomes disabled from proceeding upon it, the master has the option, within a reasonable time, either to repair her or hire another-tranship, and forward the goods in the other. Upon there delivery by such means, he will become entitled to the freight-since the contract is for the delivery of the goods, not for the arrival of the ship in which they were first laden. If the merchant prevents or discharges him from doing this, the owners will be entitled to the whole freight. If the master declines to tranship, and, without requiring him to do this, the merchant agrees to accept the goods at the intermediate port, freight will be due according to the proportion of the voyage performed.
PROTESTS AND SURVEYS.
In case of damage having happened during the voyage, or being suspected to have happened, to ship or cargo, the master should, within twenty-four hours of his arrival in port, cause a Notary Public, or, in a foreign port, the British Consul, to note a protest “ against wind and
* The master cannot hold tho cargo for demurrage.
weather," as the term is, giving the particulars of the voyage; the storms or gales encountered, as entered in the log-book; protesting that any damage that may have happened was caused by winds, bad weather, &c.
The protest need not be extended until it has been ascertained what is the nature and amount of damage, if any. A protest is not valid unless extended within six months from the date of noting.
And when a certain number of lay days are fixed for delivery of the cargo, the master must await the time, or, if no lay days have been fixed, he must await the usual or customary time allowed at the port of discharge for that purpose; and if, on the expiry of that time, the cargo be not fully unladen, he ought then to protest against the merchant or cosignee, so as the ship may thereafter lay on demurrage. Similar protests ought to be taken at the expiry of the demurrage days; and at all events, before sailing with an incomplete lading, it seems necessary that the master should protest against the shipper or his agent, so as to put these parties on their guard as to the time when, and the circumstances under which, he sailed.
When a vessel has arrived at the port of loading, and the merchants, who have covenanted to furnish a lading there, are unwilling or unable to furnish a cargo, on the expiration of the lay days allowed by charter, the master must note a protest against the merchants for non-fulfilment of the charter-party-after which he is at liberty to seek a freight in another direction, and claim compensation for loss of time, as well as any loss arising from his being obliged to accept a less remunerative freight than stipulated for in the orignal charter-party. It is improper to wait the demurrage days unless required so to do by the merchant.
It may be necessary, while opening the hatches, before breaking bulk, to hold a survey, in order to ascertain weather they have been properly secured, as, should this not be the case, and damage through leakage have thus occurred to the cargo, it will have to be sustained by the shipowner-stress of weather having occurred notwithstanding:
When it has been ascertained that damage has occurred, surveyors should be called to give a written report or certificate, as to the particulars of the damage. And in the event of the damage being repaired, the samo surveyors should be called to inspect the vessel, and give a written report, or certificate, as to the repairs which have been executed. The survey report of a cargo must particularise the goods damaged, mentioning their marks, numbers, &c.; and, being signed, must be given to tho master of the vessel.