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The appellant had no control over either the ship, or the master, or the voyage, or the crew. Indeed his rights in respect of the ship were limited to the bare right to receive the stipulated hire, and to take her back into his possession when the charter should come to an end."
Under a somewhat similar charter, where, however, the owner was not so entirely divested of possession, it was agreed that the owners were to keep the chartered steamer's engines in order, and retain the power of appointing the engineers. The charterer was to pay all other disbursements, including the wages of the engineers appointed by the shipowners. The owners were sued by the plaintiff for repairs done and stores furnished to the ship and engines at the order of the charterer, who acted as master. The owners paid 167. into Court for repairs to the engine, and successfully defended the rest of the claim. Lord Denman, C. J., observing that "the mere circumstance of ownership may be sufficient to create a liability where the vessel has been left under the control of a party who has given orders, if no intervening ownership has been created. But if a ship is let out to hire, I do not see how the owners are liable for work done upon it by order of the party hiring, more than the landlord who lets a house."
In Burnard Aaron A. and S. were joint owners of a ship. A. worked the ship, defraying
1 Reeve v. Davis, 1 A. & E. 312.
231 L. J. C. P. 334.
all the expenses and taking the entire management of her, and he took two-thirds of the gross earnings; S. did nothing, and took the remaining one-third of the gross earnings:-Held, that the result of these facts was, that A. hired the share of S. in the ship, and that he was not the partner or agent of S. so as to render S. liable in an action for damages caused by the negligence of A., and that S. had divested himself of all power of appointing the master or any of the crew, and that they were exclusively the servants of A.1
Where the owner of a ship, registered as managing owner under the Merchant Shipping Act, 1876, s. 36, chartered her under a charter-party, according to which the charterers were to provide and pay for all provisions, the wages of the captain, officers, engineers, firemen, and crew, and to meet all other charges whatsoever, except the insurance of the vessel and the cost of maintaining her in an efficient condition. A cargo of cotton was shipped under bills of lading which were signed by the captain or the agents of the charterers, and did not refer to the charter-party. The House of Lords, affirming the decision of the Court of Appeal, held that the shippers had no claim against the owner for the loss of the cargo in consequence of the unseaworthiness of the ship, inasmuch as the owner had divested himself of
The subsequent case of Steel v. Lester (a) is distinguishable from this case which does not appear to have been cited at the hearing.
(a) 47 L. J. C. P. 43; 3 Asp. M. L. C. (N. S.) 537.
all possession and control over the ship during the currency of the charter; and that therefore neither the captain nor the charterer's agent had authority to bind him by signing the bills of lading.1
Lord Herschell, in delivering the judgment in the House of Lords said: "This case, in my opinion, turns on the construction of the charterparty, and the question is, what was the relation created by it between the parties? Was it a ' demise' of the ship, or if not strictly speaking a demise, was it an agreement which put the vessel altogether out of the power and control of the then owner, and vested that power and control in the charterers, so that during the time that this hiring lasted she must be regarded as the vessel of the charterers, and not as the vessel of the owner?
"In order to create what has been called a demise, it is obvious that the use of the word 'demise' is not necessary. When this charterparty was entered into, the vessel was let by the one party, and hired by the other for a term at a lump sum, to be paid month by month during that term. The use which was to be made of the vessel during that term rested entirely with the charterers. The then owner had no voice whatever in it. The charterers might send her on such voyages as they pleased; and the only right which the owner had to object was that he had limited and restricted to a slight extent the use of the vessel by the terms
1 Baumvoll v. Furness, L. R. (1893) A. C. 8; 62 L. J. Q. B. 201.
of the charter-party. The master of the vessel and the crew were appointed as well as paid by the charterers. The owner had no voice in it at all. All that he had a voice in was the nomination of the chief engineer; but even that officer was to be paid by the charterers. Now, how would it be possible so far, more completely to let and hire the ship, demise it if you will, put it out of the power and control of the owner, and put it in the power and control of the charterers, than by such provisions as these? It is said that the charterers could not use the vessel for all voyages, and that there was a certain restriction placed on their right so to use her. That certainly is not conclusive against a demise." His Lordship further added-"There may be two persons at the same time in different senses not improperly spoken of as the owner of the ship. The person who has the absolute right to the ship who is the registered owner, the owner in feesimple, may be properly spoken of, no doubt, as the owner; but at the same time he may have so dealt with the vessel as to have given all the rights of ownership for a limited time to some other person, who, during that time may equally properly be spoken of as the owner.
When there is such a appoints the master,
person, and that person officers, and crew of the ship, pays them, employs them, and gives them orders, and deals with the vessel in the adventure: during that time all those rights which are spoken of as resting upon the owner of the vessel rest upon that
is, for those purposes during that time in point of law to be regarded as the owner."
The foregoing cases illustrate the principles upon which it has been held that there was a demise or "letting of the ship with its furniture and apparel." Between the above class of contracts and that of the demise of a ship in "a state fit for mercantile adventure," there is a class which comes neither wholly under the one nor the other, but is something between the two; it is the letting of something more than a ship, but of something less than a ship in a state fit for mercantile adventure, such as where the owner provides the ship and crew but allows the charterer to appoint his own master. To ascertain whether the master is the servant of the owner or of the charterer, or whether he is to a certain extent the servant of both, depends on a variety of circumstances, for which it is necessary to consider the terms of each particular charter.1
By a charter-party, the owner agreed to let, and the charterer to hire, a vessel for six months. The owner gave the charterer the power of appointing his own master, and required him to be responsible for his conduct. The charterer appointed a master accordingly. The freight on the goods was to be paid, according to the bills of lading, to the said master, without any stipulation that it should be applied in payment of the price of the hire of the vessel. The charterer agreed to pay at the
Abbott on Sh., p. 60.