« EelmineJätka »
rate of 22s. per ton per month, for so long as she should be employed by him; such payments to be made from month to month, leaving one month's pay in abeyance, and the balance in cash on her final discharge :-Held, that possession was given up by the owner to the charterer, that the master was in possession of the cargo, as the agent of the charterer; and that no lien upon the cargo was intended to be reserved to the owner.1
Where a ship was chartered under a time-charter providing that the master should be appointed by the charterers; that the owners were to provide and pay for all provisions and wages of captain and crew, and for the necessary equipment and efficient working of the ship; that the captain was to be dismissed by the owners if he failed to give satisfaction; and that the charterers should provide and pay for all coals, pilotages, port charges, &c. In this case the control over the master appointed by the charterer was more exactly defined by the charter-party than in the previous case,1 and it was held that the master was the servant of the shipowners, and retained. possession of the ship for them.2
Brett, M. R., in his judgment said: "Was he the captain of the owners? That must depend upon the charter-party. The fact which is against that view is, that he was to be appointed by the
Belcher v. Capper, 11 L. J. C. P. 274.
The Beeswing, 5 Asp. M. L. C. 484.
charterers. Is this what is called a demise of the ship? To my mind it certainly is not. The command and the possession of the ship were left in the hands of the owners. What the charterers had a right to was a certain space in the ship in which to put their cargo, and they had no control over the crew at all, except that they were to give what are called sailing orders to the captain. Otherwise the vessel was in the possession of the owners, and it must be a strong case indeed where the captain who navigates the ship is not their captain. The captain was to be appointed by the charterers, but the owners were to maintain the crew and the captain, and it follows that they must pay them. There was a stipulation in the charter-party by which, in the event of the charterers being dissatisfied with the conduct of the master, the owners were required to make a full investigation into the matter. Would that stipulation have been necessary if he was the servant of the charterers? It seems to me that this charter-party shows that although the captain was to be nominated by the charterers, he was to be paid by the owners, to be subject to their orders as to navigation, and to be dismissed by them if he was to be dismissed at all. It follows from this that he is the owners' captain."1
The demise or letting to hire of a ship fully Second Class equipped and manned in a state fit for mercantile adventure.
1 The Beeswing, 5 Asp. M. L. C. 484.
Respecting this class of contracts Lord Campbell in delivering the judgment of the Court in Schuster v. M'Kellar1 observed: "The ship had been chartered by the owner to Van Notten & Co., for the voyage from London to Calcutta, for a lump sum of 1,8007. evidently to be put up by the charterers as a general ship, with a stipulation as to the master signing bills of lading for the benefit of the charterers. The master and crew were employed and paid by the owner. And this certainly cannot be considered locatio navis, a demise of the ship itself with its furniture and apparel. It amounts to locatio navis et operarum magistri et nauticorum-a demise of the ship in a state fit for mercantile adventure ; which is to be distinguished from the locatio operis vehendarum mercium,—a contract for the carriage of the merchant's goods in the owner's ship and by his servants, where the owner has all the responsibility of a carrier of the goods. Notwithstanding some early conflicting decisions, it seems now settled by a numerous class of cases, from Newberry v. Colvin to Marquand v. Banner that where there is a hiring of a ship under this class of contracts, with the intention that the charterer shall employ the ship as a general ship for his own profit, when the master signs bills of lading, he does so as the agent of the charterer, and not of the owner. But still, the owner being in possession of his ship by his master and crew, he has rights
in respect of this possession-as to claim a lien on goods on board for freight due to him-and he is liable for the acts and negligence of the master, as master, irrespective of the contracts entered into by the master with the shipper of the goods as agent for the charterer. Thus the owner, although the ship be so chartered, is clearly liable for a collision arising from the improper management of the ship, and for what the master does within the scope of his general authority as master, which cannot be ascribed to his agency for the charterer."
Later cases, however, have added a further liability on the shipowner, who may be sued on the contract contained in, or evidenced by the bills of lading, if the shipper of the goods had no notice of the charter-party at the time he received the bills of lading.1
The most important decision bearing on this class of contracts is that of Newberry v Colvin 2 where a vessel was chartered to one Betham, who was by the charter appointed to the command, for a voyage to Calcutta and back to London. The owner undertook that the ship was tight, &c. and properly victualled, provided and manned; that the number of the crew should be kept up to thirty-two at his expense; and that he would keep her properly victualled and provided during the
The St. Cloud, 1 Asp. M. L. C. (N.S.) 303; Sandeman v. Scurr, L. R. 2 Q. B. 86.
27 Bing. 190.
voyage. Betham undertook to navigate the ship to the utmost of his skill and ability, and to take the ship into his service for twelve months certain, or so much longer as the voyage should require, and to pay for the use or hire of her at the rate of 25s per ton per month. Betham was to take such cargo as he might think proper, reserving certain space for the owners, and the freights on the cargo were to be for his benefit; subject, however, as to the homeward freights, to an arrangement by which the owner was to be secured payment from them of the chartered freight. He was also to be at liberty to employ the ship in the East Indies upon intermediate voyages, for a certain limited period, at the same time-freight. Further, it was provided that an agent was to be put on board by the owner, who was to have the sole management of the ship's stores and provisions, and the issuing of them, and to have the sole ordering and purchasing of any needed supplies. And it was provided that in case Betham should proceed with the ship to any port or place other than Madeira, Madras and Calcutta, without the leave of the agent, or if he should be guilty of any breach of the contract, he should be and become divested of any further command of or in the ship, and it should thereupon be lawful for the agent to appoint another commander in his place. Also, that in the event of certain defaults by Betham, the agent was to be allowed to load a homeward cargo on the owner's account, without prejudice to the charter-party.