« EelmineJätka »
A charter-party is an agreement, or contract in writing; for, as remarked by Lush, J., "the word charter imports a writing: a verbal charter is a thing unknown in maritime commerce;" and is made by the owner, part-owner of a vessel, managing owners of vessels, either personally or by agent, such as the secretaries of companies, the ship's husband, master, or other authorised agent, with the freighter, whereby the shipowner agrees in consideration of a certain sum of money per ton, or per month, or both, or for a lump sum, or for the whole period or adventure described, being paid to him at the time and in the manner stipulated in the contract, and subject to the several terms and conditions inserted in it; to let the whole or principal part of his ship to the freighter for the purpose of conveying such goods or merchandise as are mentioned in the agreement, from a place named to some other port or ports. Or the shipowner agrees with the freighter to let the whole vessel to him for a specified period, during which the freighter has the option of directing the ship to proceed to any safe port or ports subject to the special conditions of the charter.
These contracts are commercially known as 99 voyage, or "time" charters. The latter necessarily contain many more stipulations than the first class, and being more complicated frequently occasion much difficulty in ascertaining
1 Adamson v. Newcastle S. S. Freight Insurance Association, L. R. 4 Q. B. D. 467.
what the real intention of the parties to the contract was, and in determining the legal effect of the clauses.
A clean charter is one supposed to be free from all commission or agency fees, and to make the freight payable without deduction for discount.
Besides these contracts a ship may be let for other purposes, such as being employed in warfare,1 or in the fishing, coasting, or other trades, under the entire management of the hirer; or by way of mortgage, reserving at least a temporary right of management to the owner; or one part-owner may let his share to another.2
By 51 & 55 Vict. c. 39, s. 49, a "charter-party includes any agreement or contract for the charter of any ship or vessel, or any memorandum, letter, or other writing, between the Captain, Master or owner of any ship or vessel, and any other person, for or relating to the freight or conveyance of any money, goods or effects on board of the ship or
By Act 1 of 1879, (I. L. C.) Sched. 1, Art. 18, a Charter-party is defined to be an instrument (except an agreement for the hire of a tug steamer) whereby a vessel or some specified principal part thereof is let for the specified purposes of the Charterer."
The Gauntlet, L. R. 4 P. C. 184; The International, L.R. 3 A. & E. 321 ; The Richmond, 2 C. Rob. 325, 331.
* Preston v. Tamplin, 26 L. J. Ex. 346; 27 L. J. Ex. 192.
It has been held that after a charter-party had been properly stamped, a collateral agreement by the brokers to guarantee the fulfilment of the charter-party by the charterer, did not require a charter-party stamp, and that it was not within the terms of the existing statute, a document for or relating to the freight, &c.1
The forms of charter-parties which are necessarily prepared to meet the requirements of the many different trades in which they are used, differ from each other so greatly, that it is seldom that any two charter-parties are met with in which the terms and conditions are precisely the same. On this subject it was remarked by Tindal, C. J. :-" When the several cases are closely examined, it will be found that the apparent conflict of authorities in this instance, as in all other questions arising on the construction of written instruments, arises more from the variety of terms employed by the parties themselves in framing their contracts, than from the difference of opinion in the Judges who interpret them. In each case the whole contract must be taken together, and due effect given to the several clauses which counteract or qualify each other; and thus it often happens that the same expressions will bear different meanings, and require a different interpretation, according to the context of the instruments in which they are found." 2
Contracts between Shipowners and Merchants have been divided into three classes. First, a demise of the ship itself, with its furniture and apparel. Second, a demise of the ship in a state fit for mercantile adventure. Third, a contract for the carriage of the merchant's goods in the owner's ship and by his servants.
In the last class, subject to an express provision to the contrary, the owner has all the responsibility of a carrier of the goods; whilst in the first class, he may have relieved himself from personal liability.
The letting to hire or freight of the ship with Locatio Navis. its furniture and apparel, fully equipped but not manned, is well illustrated by the charter-party which was entered into in the case of Meiklereid v. West.2
By the terms of the charter the ship was to be placed under the direction of the charterer, to be employed by him for the conveyance of merchandise or cable service.
By another clause the vessel was "let for the sole use of the Charterer for three or more calendar months," at his option, and he was to pay the stipulated freight until the vessel was returned by him. The Charterer was to find all ship's stores, to pay crew's wages, repairs of engines and boilers, &c.; the owners paying insurance on the vessel only.
1 Schuster v. M'Kellar, 26 L. J. Q. B. 281.
The vessel was to be delivered up by the Charterer to the owners on the termination of the charter, fair wear and tear excepted.
The Charterer having taken possession of the ship under the charter, appointed one Fawens as Master, and the latter engaged the respondent's husband as one of the crew,
A claim being made against the owners by her as the wife of one of the ship's engineers, on an allotment note granted by the Charterer's Captain on the Charterer, Field J., in delivering the judgment of the Court, after stating the above facts, said: "It was not, and could not be reasonably contended that the owner by himself, or by any authorised agent, had entered into any contract with the respondent's husband, or given any authority expressed or implied for the drawing of the note in question." His Lordship further added, "In the present case,-although the appellant (the shipowner) was in every sense before the execution of the charter-party, the "owner" of the ship, he had by the execution of that instrument entirely divested himself, not only of possession of, but also of all control over her. The charter-party as is already stated contained not only words of demise, which by themselves passed the possession of the ship for the stipulated time to the charterer, but also contained the other stipulations above set out, carrying out the same object. The charterer, in fact, appointed the master, and the master so appointed paid the wages as the charterer's agent.