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it to a purchaser operates to transfer to him the ownership in the goods (d).
A charterparty is commonly made between the owner or the master of the ship (as the case may be) on the one part, and the owner of the goods on the other, and purports to be an agreement, that the ship shall be employed in the conveyance of goods for a certain voyage (or for a certain period of time), at a certain amount of freight, calculated at so much per ton, or at so much per month during the voyage. It also usually engages, First, on the part of the ship-owner or master, that, being seaworthy and provided with necessaries, the ship shall receive a full cargo on board, not exceeding what she can reasonably carry; that the same shall be properly stowed ; and that the ship shall then immediately sail (wind and weather permitting) on the specified voyage, and that the cargo shall be delivered (subject to certain preventing causes) at the port of destination, to the charterer or his assignees, in as good order as it was received on board ; and, Secondly, on the part of the charterer, that he will supply a full cargo, and load and unload the goods within a certain number of days (usually called lay or running days), and pay freight as agreed upon ; and that, if he detains the vessel beyond the running days, he will also pay demurrage, that is, a certain amount per diem for the whole period of such extraordinary detention (e).
In the performance of this contract, it is the duty of the ship-owner or master to take good care of the cargo during the voyage ; and the ship-owner will be liable to make satisfaction for any damage resulting from the master's negligence in this respect or for the loss or non-delivery of any of the goods of which the cargo consists, unless occasioned by causes within the exceptions of the charterparty. Under the ordinary exceptions, the ship-owner,
(d) See above, p. 50, Sewell v. Burdick (1884), L. R. 10 App. Ca. 79; Bills of Lading Act, 1855, s. 1.
(e) Saxon Steamship Co. v. Union Steamship Co. (1901), 83 L. T. 106.
if he has acted with reasonable care, is protected from liability for loss or delay arising from “ the act of God, “ the king's enemies, restraint of princes and rulers, fire,” aud perils of the sea of all kinds (). If the goods arrive safely, the ship-owner or master is not bound to deliver them (unless there be some stipulation to that effect), unless and until he receives payment of the freight ; for there is in general a lien on the goods for the freight, and the delivery and payment are considered in law as contemporaneous.
If the ship-owner or master, being prevented by an accident for which he is not responsible from entirely performing his contract, yet performs it in part, by carrying the cargo safely during a certain portion of the voyage, and the charterer receives the benefit of such part performance, freight will then be due pro ratá itineris. Thus, if the cargo be captured by an enemy during the voyage, and be retaken, and ultimately come to the charterer's hands ; or if the ship be lost by stress of weather before the termination of the voyage, and the cargo be voluntarily accepted by the owner of it at an intermediate port ; he will be liable to pay the owner of the chartered vessel freight pro rató, that is, an amount proportioned to the distance for which the goods have been carried (9). This right is founded, not on the charterparty, but on the contract which the law implies in every case where a service has been rendered, viz., that the party who consents to take the benefit of it, shall pay in respect thereof as much as it is reasonably worth, or, in other words, shall pay as upon a quantum meruit.
(f) The Xantho (1887), L. R. 12 App. Ca. 510.
(9) The Soblomsten (1866), L. R.
1 Ad. & Ec. 297 ; Metcalfe v. Britannia I. W. (1877), 2 Q. B. D. 423.
CHAPTER V.-SECTION XII.
OF DEBTS AND CHOSES IN ACTION.
The meaning of, and distinction between, choses in posses · sion and choses in action has already been dealt with in a previous chapter (u). The subject of choses in action is, however, so important, that it is desirable to consider it more fully. Although in its original sense, a chose in action meant merely any right to things personal out of one's possession, in modern times the expression is, ordinarily, extended to rights to any act or forbearance due under a contract, and in particular to the payment of money. The most familiar instances of choses in action are, therefore, ordinary debts, stocks and shares in companies, and negotiable instruments. It is not necessary in this part of the work to deal specially with the subject of stocks and shares ; but it is proposed to consider the other instances mentioned in some detail.
Debts and other choses in action were not at common law assignable. If a person assigned a chose in action to another, the latter could not in his own name sue the debtor. An assignment could only be made by consent of the debtor, so as in effect to amount to a novation of the debt. The obligation between debtor and creditor was regarded as a personal one, and, in addition to this fact, a chose in action, being an intangible thing, had only a notional existence, and it was regarded as impossible to transfer possession of it, and therefore impossible to assign it effectually at all (1). To this technical rule of the
common law there were a few exceptions, i.e., (1) the Crown could assign its choses in action ; (2) assignments by operation of law were valid, e.g., on marriage, death, or bankruptcy ; (3) annuities were assignable (c) ; (1) by the law merchant, which was in effect part of the common law, bills of exchange, cheques, and eschequer bills to bearer, could be assigned.
Further exceptions in particular cases grew up by statute ; for instance, promissory notes by Acts of Queen Anne's reign, bail bonds, replevin bonds, mortgage bonds, bills of lading (if indorsed), mortgage debentures, East India bonds, policies of life and marine insurance, and shares in companies.
Quite apart from statute altogether, many choses in action could, and can still, be assigned in equity. The Court of Chancery, from a very early date, would recognise as valid, and give effect to, such an assignment, and would allow the assignee, in his own name, to sue the debtor. An equitable assignment, however, semble, had to be for value (il); notice of it bad to be given to the debtor in order to render it effectual against him (e); and the assignee obtained no better title than the assignor, but took the chose in action subject to any equitable rights of other persons affecting it at the time of the assignment, whether he had notice of such rights or not, unless there existed some estoppel precluding such persons from setting up equities (1'). The effect of an equitable assignment varied according to the nature of the chose in action
(c) Co. Litt. 144 b, note 1 by Hargrave.
(a) l'ard v. Audland (1844), & Beav. 201; Tailly v. Official · Receiver (1887), L. R. 13 App. Ca. 543 ; but see Harding v. Harding (1886), 17 Q. B. D. 442, and articles in the Law Quarterly Review, vol. xvi., p. 241; and vol. xvii., p. 90.
assigned. If it was an equitable chose in action the assignee could sue in his own name so as effectually to bind the assignor ; but if it was of a legal nature, he was required to join the assignor as a party to the action, in order to bind him by the decree. It was usual, in any case, for the assignor to appoint the assignee his attorney, to sue for the debt in the name of the assignor.
There are certain exceptional cases in which choses in action can neither in equity nor under the Judicature Act be effectually assigned, i.e., (1) where the contract in question is purely personal ; (2) where it contains an express provision against assignment; and (3) where the assignment is illegal or contrary to public policy (9).
A great change in the law was made by the Judicature Act, 1873, s. 25 (6), which provides, in effect, that any absolute assignment in writing of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, shall vest in the assignee the legal right to sue for and give a good discharge for the same, withont the concurrence of the assignor, but subject to all prior equities. The following points must be carefully noted in connection with this provision. The effect is to give the assignee a complete legal right to sue in his own name (h). The conditions upon which the section operates are as follows: (1) The assignment must be “ alisolute and not by way of charge only." But this includes a mortgage in the ordinary form (i). (2) The assignment must be of a “delt or legal chose in action.” This seems to include all rights which could, previously to the Act, have been validly assigned either at law or in equity. It would not include the three exceptional cases above mentioned,